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L  A  W    C  A  T  A  L  0  (i  U  E . 


BANK  S,    G  O  U  I.  1)   &    C  () . , 

144  Namau  Street,  New  York. 

A.VI) 

GOULD,     BANKS     &     CO., 

475  nroad^vnyf  Albany. 

1856. 


CARD. 

We  would  respectfullj  call  the  attention  of  the  Legal  rrofcssioa  to  the  works  contained 
in  this  Catalogue. 

"We  would  invite  particular  attention  to  our  Text-Books ;  they  are  well  known,  and  have 
met  with  great  success  araong  the  profession. 

The  New  Tork  Reports  require  no  comment,  as  thev  are  received  as  the  highest  author- 
ity in  the  diCferent  Courts  of  the  several  States. 

"Wo  have  issued  a  now  series  of  the  Connecticut  Reports,  Twenty-one  Yolumes,  well  got- 
ten up  in  every  respect,  and  will  furnish  them  at  a  reduced  price.    See  page  4. 

TVo  have  also  published  the  English  Ciiaucery  Reports  entire,  without  any  condensation 
•whatever,  and  will  issue  the  succeeding  volumes  from  time  to  time.  These  Reports  are 
very  valuable,  being  decisions  of  the  highest  Court  in  England.     See  page  7. 

The  prices  heroin  named  are  full  retail  rates,  from  which  discounts  will  bo  made  for  cash. 


ADAmS  OX  EJECTiHENT. 

Fourth  Edition.    Price  $5. 

A  Treatise  ox  thb  Principlks  ant>  Practice  of  the  Action  op  EjECTifEsr,  a>*d  the 
Resulting  Action"  for  Mesne  Prohts,  by  John  Adams,  sergeant  at  law.  The  Fourth 
American  from  the  London  Edition,  with  Notes  of  the  Decisions  made  by  the  Supreme 
and  Circuit  Courts  of  the  United  States,  and  by  the  Courts  of  the  several  States,  whose 
decisions  have  been  reported ;  together  with  the  statutory  provisions,  in  relation  to  those 


15 


2  BA^'KS,  GOULD  k  CO. '8 

actions,  conUincil  in  tlio  Rcvisod  SUitulos  of  Now  York  ;  nntl  Preccdonts  of  Kiitrle*.  Pload* 
Ings  anil  TrocfM  ndnplod  ihiTolo,  by  Jolin  L.  TillingliHKi,  coutiHi-llor  nt  Inw.  To  wliich  are 
added  Annotnlions  and  lUfiTcnccH  to  Iho  most  roctMit  American  PocinioiiH,  by  Thomas  W. 
Gierke,  councilor  nt  law.  Cart'fuliy  (xillntod,  and  mmlo  to  correspond  wiili  llio  latest  Lon- 
don edition,  corrected  by  tlic  author;  to^'cther  witli  additional  Notes  and  Decit«iona  in  tlio 
Courts  of  the  sovcrnl  Slates.  By  William  Hogan,  counsellor  at  low;  and  continued  by  T. 
W.  Waterxah,  embodying  all  tlie  American  and  Kngliah  actions  to  the  present  time. 


ALI.KX  Oy  MIIIIIIFFM. 

rricc  $3. 

Tub  Duties  ant)  LrAnrLixiES  of  Shekifph,  in  thbih  vauious  rklatioks  to  thh  pudljo 
and  to  individuals,  as  governed  by  tlie  principles  of  common  law,  and  regulated  by  the 
Statutes  of  Now  York.  Revised,  corrected  and  enlarged,  by  Otis  Allf.n,  counsellor  at 
law. 


TIIF.  A:nEltl<-A>i  C^IIAXnilY  »If;E8T. 

Third  Edition.  Three  Vols.  TVice  $15. 
Bimc  Av  Amalttical  Digested  Index  of  all  the  Reported  Decisions  in  Fqihtt  of 
the  United  .'^Intcs  Courts  and  of  tlie  Courts  of  the  several  Stales,  to  the  present  time,  with 
Notes  and  a  copious  Index;  also  an  introductory  Kssay,  comprising  an  historical  sketch  of 
tlie  Court  of  Ciiancory ;  an  account  of  llio  nature,  powers  and  functions  of  the  Court,  and 
the  orpnnization  and  equity  jurisdiction  of  tiie  Court  of  the  United  States  and  of  each  of  the 
States  of  llio  Union.     IJt  Thomas  \V.  "Waterman,  of  llio  New  York  Bar. 


A:^TU0.\*S  MSI  PHI  I  IK  KEPOKTS. 

Second  Edition.    Price  $4. 
Tn«  Law  of  Nisi  Pnrns,  beino  Reports  of  Cases  Determinf-d  at  Nisi  Pnirs,  n»  the 
Supreme  Court  of  liio  .Sinte  of  New  York;  with  Notes  and  Commentaries  on  each  case.     2d 
ed.,  with  many  additional  cases  never  published  before.     Judges  presiding:  Chief  Justic* 
James  Kent;  Juatices  Van  Ness,  Tiionin<>on,  Spencer  and  Yeatea. 


Allt  IIIIOED'.S  (;iVIL.  PI.F.ADI^C;. 

Second  Edition.    Price  $1. 
A  Diomt  Of  the  Law  relative  to  Pleading  and  Evidence  in  Civil  AmoNa.    Rr  Joair 
Frkukrick  Akchuold,  barrister  at  law.     Second  American,  from  the  last  London  edition. 


Aiic  iiBoi.D's  pei:adi!v<;  akd  evidence. 

f^tzth  Edition.  *■  Three  Vvla.     Prict  $16  60. 

ARfRP.OI.D'B  SlMMAUT  OF  TIIK  LaW  RELATING  TO  PLEADING    AND  KyIDENCB    IN  CKIMntAL 

Canes:  with  Slatut«i»,  PrcceiletitH  of  IndictmenlH,  4c.,  and  tiie  evidence  necej<siiry  to  support 
them.  By  John  Jertih,  KHg.,  Q.  C,  of  tt:e  Middle  Temple,  barrister  nt  law,  with  a  Patent 
of  rr»ced»nce.  A m<riran,  from  tln<  lA)ndon  editii'n;  much  enlnrtjod  and  improved.  By 
W.  N.  Wri/tiiT,  K»q  ,  of  the  .MiJdl'i  Temple,  barri^ier  at  law,  Hoc«order  of  Chester;  to 
which  are  added  innumerable  Ameri<Tiii  hjmI  Knu-liKh  Chjhs,  and  brought  down  to  the  prea- 
•Dttima.     By  TuoMAi  W.  Watkruax 

■  ABIIOI  n*ll  ('IIAI^CEHV   nEFOUXK. 

Thret  Volt.      Ptireflb. 
RitPORTi  or  Cams  Aroced  akd  DrrKRuiNED  in  thk  rturin  or  CnANCKRT  of  tub  Stat* 
of  New  York,  from  1845  to  U4T.     By  U liter  K   lUnnouR,  c(>un»ellor  at  law,  succeiiOf 


LAW  PUBLICATIONS.  3 

^r  Pnigo,  and  in  continuation  of  JolinKon,  Hopkins  and  Paigo.     Tlieae  deciaions  aro  coDBid- 
■erod  tlio  ablest  and  most  reliable  of  any  oilier  in  our  country.     li.  II.  Walworth,  CltanctUor. 


IIAUIIOI  Itrs  CUI.HINAI^  VUKATIHK. 

Second  Edition.     Price  $5. 

TnK  Maqistratk's  Cuiminal  Law:  A  Practical  Tukatise  o.v  thk  Juhisdiction,  Duty 
«nd  Authority  of  tlio  Justices  of  the  Peace  in  the  State  of  New  York  in  Criminal  Courta. 
Containing,  also,  a  Summary  of  the  Law  relative  to  Crimes  and  Punishmenta,  with  an  Ap- 
pendix of  Forms  of  Proceedings.  By  Olivek  L.  Barbouii,  counsellor  at  law.  Second  edi- 
tion.    Much  enlarged,  with  Notes  and  References  and  ad'Htional  forms. 


IIARBOiril^S  LAW  OF  .SET-OFF. 

rrice  $2. 
A  Treatise  on  the  Law  or  Set-off,  wiru  an  Appendix  op  Pkeckdents.    By  Oliveb 
L.  Bakuour,  counsellor  at  law. 


ItAIlIIOdU'S  SUPHK.tlE  COURT  RF.PORTS. 

Ttventy  Vols.     Price  $70. 

Reports  op  Cases,  in  Law  and  Equity,  in  the  Sm'RExiE  Cocf.t  of  the  State  of  Nbw 
York,  under  the  New  Constitution,  1846.    By  Oliver  L.  Barbour,  counsellor  at  law. 


BENEDICT'S  AMERICAN  ADMIRALTY. 

Price  $5  50. 

The  AsrKRicAN  Adxhralty,  its  Jurisdiction  and  Practice,  with  Practical  Forms 
and  Directions.    Ey  Erastus  C.  Benedict. 


BRIOHT'S  HUSBAND  AND  AVIFE. 

Two  Vols.     Price  $10. 

A  Treatise  on  the  Law  of  IIusband  and  "Wife,  as  respects  Property.  Partly 
founded  on  Roper's  Treatise,  and  comprising  Jacob's  Notes  and  Additions  thereto,  by  John 
Edward  Bright,  Esq.,  of  the  Inner  Temple,  barrister  at  law.  "With  copious  Xotes  and 
References  to  the  American  Decisions,  and  also  an  Appendix,  containing  the  Statutes  of 
every  State  in  the  Union,  in  relation  to  the  rights  and  property  of  females  before  and  aftac 
marriage.     By  Ralph  Lockwood,  counsellor  at  law. 


CAINES'  CASES. 

Price  $4-, 
Cases  Argued  and  Determined  in  the  Court  for  the  Trial  of  Impeachments  and 
Correction  of  Errors  in  the  State  of  New  York.     By  George  Caines,  counsellor  at  law. 


CAINES'  REPORTS. 

Third  Edition.     Three  Vols.    Price  $U. 

New  York  Term  RsroRTS  op  Casks  Argued  and  Determined  in  the  Supreme  Court 
of  that  State.  Third  edition  just  published,  containing  Notes  and  References  to  all  the 
American  and  English  decisions,  to  the  time  of  publication,  by  "Waterman;  with  correc- 
tions and  additions.     By  George  Caines,  counsellor  at  law. 


BANKS,  OOULD  1  GO.'S 


C'A  1. 1  FOlt  .\  I A   1*11  ACT  I<  T,. 

iVift!  $3  50. 
A  TrKATISE  on  TllK  PlUCTlCE  OF  THE   COUIITS  OP  THE  STATE  Of   CaUFOUXIA,  CAUEFCXLT 

adapted  to  Iho  existing  law. 


CIIITT\''S  C'lCimiNAI.  LAW. 

Fifth  Edition.     Three  Vvls.     Price  $12. 

A  Practic.u,  Tiu:atise  ox  the  Cuimixal  Law,  comprisinq  the  Tuactice,  Tm: adixos 
and  Evidence,  which  occur  in  the  course  of  Criminal  Prosecutions,  whether  by  IndictmenC 
or  lurormation:  with  a  copious  collection  of  Precedents  of  Indictments,  Information,  Pre- 
sentments and  every  description  of  Practical  Forms,  with  CompreheiiHivo  Notes  upon  each 
offence,  the  Process,  Indictment,  Plea,  Defence,  I'lvWcnce,  Trial,  Verdict,  Judgment  and 
Punishment.  By  Joskph  Chitty,  of  the  Middle  Temple,  barrister  at  law.  From  the 
Second  and  last  London  edition,  corrected  and  enlarged  by  the  author;  with  Notes  and  Cor- 
rections. By  Richard  Peters  and  Tnos.  Hcxtixgtux.  To  which  are  now  added.  Notes 
and  References  to  the  cases  decided  in  the  Courts  of  ti>e  United  States  and  of  the  several 
States,  to  the  present  time,  as  well  as  to  the  late  English  decisions.  By  J.  C.  Perecxs, 
coansellor  at  law. 


CLAKKE'S  CIIAIVCEHY  REPOKT.S. 

Price  $4. 

RBP0RT8  OF  CnAXCERT  CaSES   DECIDED    IN   THE    EIGHTH   CIRCUIT  OP  THE  StATE  OF  NeTT 

Tork,  by  Hon.  Frederick  '^'uittlesey,  Yice-Chancellor.     By  Charles  L.  Clarke,  coun* 
sellor  at  law. 


COMSTOCK'S  HEPOKTS. 

Vols.  1,  2,  4.     Price  $8  50. 

Reports  of  Cases  Argued  axd  Determined  in  the  Court  op  Appeals  op  the  Statz 
of  N««w  York.  By  George  F.  Comstock,  Esq.,  State  Reporter.  Judges  names:  Freeborn 
G.  Jewett,  Greene  C.  Bronson,  Addison  Gardner,  Charles  If.  Ruggles,  Samuel  Jones,  Wil- 
lUm  B.  Wriglit,  Thomas  A.  Johnson,  Charles  Gray,  Eli.sha  P.  Iluilbut,  Ira  Harris,  Daniel 
Pratt,  Henry  W.  Taylor,  Selah  B.  Strong,  Daniel  Cady,  Wniiam  H.  Sliaukland,  James  G. 
Hoy  I. 


CONNECTICUT  ItEFOKT.S. 

Second  Edition.     7\venty-one  Vols.    Price  $\05. 

Hkports  or  Cases  Augl-ed  and  Determined  in  the  Supreme  Court  ok  Kunoits  or  the 
Sut«  of  Connecticut,  from  1814,  inclusive;  prejmred  an<l  published  in  pursuance  of  a  Stat- 
ute I.41W  of  the  State.  Second  edition,  corrected,  with  Notes  and  References  to  the  several 
State  Reports.     By  the  Hon.  Thoma.s  Day. 


COU  E.>'.S  (  IVII..   THEA  riSE. 

Fourth  Edition.     Price  $5. 

A  Trbatisi  on  the  Civil  Jurisdiction  of  Justices  of  the  Peace  or  tub  Statb  of  New 
York.    By  EsEK  Cowen,  counsellor  at  law.    Second  edition,  revised  by  Sidney  J.  Cowbk, 


LAW  rUBLIGATIONS.  5 

counsellor  at  lawr.     Third  edition,  brou^'Iit  down  to  t!io  present  time,  by  Olivkr  L.  Bau- 
aouR,  counsellor  at  law.     With  Appendix,  adapting  the  same  to  the  New  Code,     liy  CuE8- 

TBB  HaYDHN. 


COWKIV'S  Iti:i»OItTS. 

Nine  Vols.    Price  $45. 

Reports  op  Cases  Argued  and  Determin-ed  in  the  Supreme  Court  for  the  Trial  or 
Impeachments  and  the  Correction  of  Errors  of  tlie  State  of  New  York,  from  1S23  to  1828. 
By  KsEK  Cowen,  counsellor  at  law,  and  successor  of  Johnson. 

CROCKER  0.\  SHERIFFS. 

Price  $5. 

A  Treatise  on  the  Duties  op  Sheriffs,  Coroners  and  Constables,  wito  Practical 
Forms.    By  JouN  G.  Crocker,  counsellor  at  law. 


BART'S   L,AW  AND   PRACTICE    OF  VENDORS    AAD    PURCHASERS    OP 

REAL  ESTATE. 

Price  §5  50. 

A   COilPENDIUM   OP  THE   LaW  AND    rUACTICB    OF  VENDORS   AND    PURCHASERS    OF    REAL 

Estate.    By  J.  Henry  Dart,  of  Lincoln's  Inn,  barrister  at  law.     With  Notes  and  P^efer- 
eacos  to  American  Decisions,  by  Thomas  W.  Waterman,  counsellor  at  law. 


DAYTON'S  SURROGATE. 

Second  Edition.  Price  $5  50. 
The  Office  op  Surrogate,  Surrogates,  and  Surrogates'  Courts,  and  Executors, 
Administrators  and  Guardians  in  the  State  of  New  York.  A  Compilation  of  the  Statutes 
and  a  Summary  of  the  Judicial  Decisions  of  the  State  of  New  York,  relating  to  the  office  of 
Surrogate,  the  Proving  of  Wills,  the  Granting  of  Probate,  of  Letters  Testamentary,  of  Ad- 
ministration and  of  Guardianship,  and  the  Powers,  Duties,  and  Liabilities  of  Executors,  Ad- 
ministrators and  Guardians.  By  Isaac  Dayton.  With  an  Appendix,  containing  Forms 
and  Precedents  for  Practice  in  the  Surrogates'  Courts,  and  for  the  use  of  Executors,  Ad- 
ministrators and  Guardians. 


DEAN'S  LA^V  MANUAE. 

Price  $1  25. 
A  Manual  op  Law,  fob  the  use  op  Business  JIen;  containing,  alphabetically 
arranged,  the  Legal  Principles  of  most  frequent  application  to  ordinary  business  transac- 
tions, together  with  References  to  the  Authorities  sustaining  them.     By  Amos  Deak. 


DEAN'S  MEDICAL  JURISPRUDENCE. 

Second  Edition.    Price  $3  50. 

Principles  of  Medical  Jurisprudence,  designed  for  the  Professions  of  Law  A>a) 
Medicine.  By  Amos  Dean,  counsellor  at  law  and  Professor  of  Medical  Jurisprudence  in 
the  Albany  Medical  College. 


DENIO'S  REPORTS. 

Five  Vols.     Price  $20. 

Reports  op  Cases  Argued  and  Determined  in  the  Supreme  Court,  and  in  the  Coubt 
&r  the  Correction  of  Errors  of  the  State  of  New  York,  from  1845  to  1848,  inclusive.  By 
HiBAM  Denio,  Esq.,  Euccessor  of  Hill,  and  the  continuation  of  Johnson,  Cowen,  and  Wendell. 


9  BANKi^  QODLD  A  CO.'S 

1)1  M.  vi*'N  I*  ii.i;\  '•>  v<.i::n(-y. 

Third  Kdtlion.  Prw  :«  1 
A  Tkkatise  ox  thk  Law  or  Piuscipai,  ash  Aoent,  ciiikkly  witu  referehcr  to  irim- 
canlilo  Tniiisiiction^.  IW  William  Palkt,  of  I,iiic<>lii'8  Inn,  Ksq.,  bnrriMt«r  at  Inw.  Tho 
third  edition,  with  considerablo  n<lilition.«s  hv  J.  H.  Lloyd,  of  tlio  Inner  Temple,  K«q.,  bar- 
ri8t<?r  at  law.  Third  American  edition,  with  ext>'nsivo  additions,  reforrint;  to  and  embracing 
all  the  ca.«ort,  bt)th  Koglish  and  Auierican,  to  tho  present  time.  Hy  John  A.  Dl'SLAP,  Ksqi, 
oouDSt-Uor  at  law. 


EDEM  O^i   i:>JI  ^C'TIO.'VS. 

Third  Edition.     Tkoo  Vols.     Price  $10. 

A  Trkatise  ox  the  Law  or  Inju.vctioss.  By  the  Hon.  Robert  Henry  Eden,  op 
Lincoln's  lun,  barrister  at  law.  Third  American,  from  the  last  London  edition:  to  which 
la  added  copious  Notes  and  Kefcrences  to  all  the  Decisions  of  the  Courts)  of  the  United 
Sutea,  and  of  the  diflferent  Sutea,  on  this  subject.  By  Jacob  D.  Wheeler,  counsellor  at 
law.  A  new  edition,  by  James  Haio,  Req.,  of  Lincoln's  Inn,  barrister  at  law.  American 
•ditiou,  from  tho  last  English,  by  Waterman,  containing  all  llio  American  and  Eiiplisli  De- 
•iaions  to  the  present  time,  making  two  Inrgo  8vo  vols., — a  complete  work  on  this  subject. 


EDM'ARD'S  t'lIA.NC'EKY  KEPOltTS. 

Four  Vols.    Price  $20. 
Reports  of  Chancery  Cases  decided  in  the  First  Cihcuit  of  tub  State  ov  Nbw 
Tork,  by  the  Hon.  William  T.  McCoun,  Vice-ChaucuUor.     By  Charles  Edwauus,  coun- 
sellor at  law. 


EDAVAKDS  0.\  ll.\IL:nE.'%T.S. 

Price  $4  bO. 

A  Tbeatisb  on  the  Law  of  Bailments.  By  Isaac  Edwards,  CotrxsELLOR  at  Latt. 
Chapter  1 :  On  Bailments. — Chapter  2:  On  Deposits — Chapter  3:  Gratuitous  Commissions 
or  Mandates. — Chapter  4:  Gratuitous  Loans. — Chapter  5:  Pledges  or  Pawns. — Chapter  6: 
Oontracla  for  Hire. — Chapter?:  Of  Innkeepers. — Chapter  8:  Common  Carriers— Carriers 
o.*"  P  isxengcrs.     The  above  chapters  arc  very  full  and  complete. 


EDIV.^KDS  <»-   lir.t  r.lVKKN. 

Price  $5. 
0.V  Receivers  in  Chancery,  with  Precedents.    By  Cuari.e8  Edwards,  Counskllob 
at  law,  Author  of  "Edwards  on  Parties,"  and  Reporter  of  tho  Vice-Chnncellur's  Court  of 
the  First  Circuit  of  the  Slate  of  New  York. 

KI.I.IOTTfS  IHIM.O.YIATIC  CODE. 

Two  Vols.  Price  $\ 2. 
Thb  American  riPi>oMATic  Codk,  Embracino  a  Collection  o»  Trkatiks  and  Convex- 
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IG  NOTICES  OP  TDK  PRESS. 

dtcd  ill  Iho  flrsl  volume  by  Gralmm,  wliilo  in  the  soeonJ  and  tliirii  volumen  by  'Wntcrman 
the  number  ufcnsoH  quotcil  cxciodit  lltroc  thouiuitui  oiKbt  liuiulrod,  mnkiii)^  in  nil  ii<  urly  five 
thouMtid  cnscB,  collected  nnd  arrnngod  in  one  oyalcmntic  work.  Wo  think  it  inuy  (liirly  be 
said  to  cxhnu^t  the  subject 

"Mr.  Omham's  treatise  htvlngloni;  been  a  text-book  in  the  ImndHofthe  proression,  it  would 
bo  superfluous  to  speak  minutely  of  its  cwntents.  Mr.  Wnlcrmnn  opens  his  part  of  the  work 
with  !»  conond  view  of  the  subject  of  trinl  by  jury,  nnd  of  tlio  nncient  nnd  inodorn  ntethods 
of  corrootin^'  n  wronp  verdict  It  apix'nrs  tl'nl  'nnciently,  the  priniipid  remedy  for  revers- 
ing a  verdict  impropt<rly  given,  wns  by  writ  of  nttnint  The  inquiry  was  miido  by  a  jury, 
double  the  number  of  tlifso  wlio  rcndLTcd  tho  alleged  false  verdict,  nnd  if  lliey  found  the 
verdict  a  false  one,  tho  judgment  by  tho  common  law  wns,  thnt  the  jurors  should  become 
inljimous;  should  forfeit  their  goodt*,  nnd  the  profits  of  their  lands;  shouM  themselves  bo 
imprisoued,  nnd  their  wives  atul  children  thrown  out  of  doors;  should  have  their  houses 
razed,  their  trees  extirpated,  and  their  mendows  ploughed ;  nnd  tlmt  tho  plaintiflT  should  bo 
restored  to  all  that  he  lost  by  reason  of  the  unjust  verdict  A  law  so  terribly  severe  could 
not  be  executed,  nnd  by  subsequent  stntute.",  which  were  made  perpetual  by  13  Kliz.  c.  25, 
tho  punishment  was  diminished  to  perpetual  infamy  and  a  pecuniary  fine.'  According  to 
Blackslone,  'there  are  instances  in  the  year  books,  in  tho  reigns  of  ICdwnrd  III,  Henry  IV, 
and  Henry  Yll,  of  judgments  being  stayed,  even  aflera  trial  utbnr,  nnd  new  venires  award- 
ed, because  the  jury  had  eat  and  drank  without  consent  of  the  judge,  nnd  becnuso  tho  plain- 
tififhad  privately  given  a  paper  to  a  juryman  before  he  was  sworn.  And  upon  these,  the 
Chief  Justice  Glynn,  in  1655,  grounded  the  first  precedent  that  is  reported  in  our  books  for 
granting  a  new  trial  upon  account  of  excessive  damages  given  by  the  jury  ;  apprehending, 
with  rea.son,  that  notorious  partiality  in  tho  jurors  was  a  principal  species  of  mi.sbehavior.' 

"  In  the  chapter  following  tho  historical  view  from  which  we  extract  the.se  antiquities,  Mr. 
Wntemian  discusses  the  jurisdiction  of  courts  in  granting  new  trials ;  and  in  succeeding 
cliaplt.n«,  he  con.siders  in  detail  tho  various  causes  for  granting  such  relief;  for  example, — 
want  of,  or  insufficient,  notice  of  trial;  defects  in  the  summoning  and  drawing  of  jurors; 
disqualification  of  jurors,  from  interest,  relationship,  conscientious  scruples,  age,  alienage, 
menUl  or  bodily  disease,  4c.;  tampering  with  tho  jury ;  bias  or  hostility  of  jurors;  miscon- 
duct of  the  jury ;  mi.sruling  or  misdirection  of  the  judge;  Kurj)riso;  newly-discovered  evi- 
dence: excessive  or  inadequate  damages;  verdict  against  law  or  evidence,  Ac;  and  the 
concluding  chapter  is  devoted  to  the  consideration  of  the  principles  by  which  courts  of  equity 
are  governed  in  granting  new  trials. 

"The  time  and  labor  expended  in  compiling  a  work  so  comprehensive  and  elaborate,  must 
have  been  very  great  nnd  can  scarcc-ly  fail  to  bo  appreciated  by  the  profession.  In  truth, 
til©  work  will  henceforth  be  an  indispensable  part  of  the  library  of  every  lawyer  who  prac- 
tices in  courts  of  record  in  any  State  of  tho  Union.  It  is  nlso  probable  tiial  it  will  be  re- 
printed in  Kngland,  where,  as  well  ns  hero,  it  is  unrivnlled." — C'^ynvterrial  Advertiser. 


WILLARD'S  EQUITY  JURISPRUDENCE. 

I'rice  $5  50. 

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for  himself  nil  unviable  fame  wliorever  the  judicial  lieports  of  these  tribunals  are  read. 

"The  Ircatiso  on  Kquity  Jurisimnlenco  just  submilted  by  him  to  the  profiHHioii  wns  much 
noodcxi.  11,.  I  >.M  Hindu  a  book  for  which  there  is  no  substitute,  and  whidi  will  soon  bo 
found  i  to  every  equity  lawyer  in  the  Slates.     It  has  boon  executed  obviously 

with  gf'tii  '  iir"  iin'l  labor,  and  none  who  know  tho  character  of  Judge  Willnrd's  mind  will 
doubt  its  accuracy."— JTvfrnny  PvtU 


THE 


DUTIES    OF    SHERIFFS, 


CORONERS, 


AND 


CONSTABLES 


WITH 


PEACTICAL    FOE  MS. 


BY    JOHN    G.   CROCKER, 
Connscllor  at  Law. 


ALBANY: 

GOULD.    BANKS    &    Co.,    4  75    BROADWAY. 

NEW   YORK: 

BANKS,    GOULD    &    Co.,    144    NASSAU    STREET 
1855. 


Entered  according  to  Act  of  Congress,  in  the  year  one  thousand  eight  hundred  and  flfly-flve,  by 

GOULD,  BAXKS  &  CO., 

In  the  Qerk's  Office  of  the  District  Court  of  the  Northern  District  of  New  York. 


T 


LTOX  *  ARTHUR,  nttXTERB. 
fnc4,N.  Y. 


PREFACE. 


The  principal  portion  of  "  the  duties  of  sherifls"  was  a  work  of 
necessity,  rather  tiian  of  choice,  and  was  mainly  prepared  as  the  ques- 
tions arose,  and  required  investigation.  Subsequent  considerations 
induced  a  more  full  examination  of  the  subject,  as  well  as  the  addition 
of  the  duties  of  coroners  and  constables  to  those  of  sheriffs. 

The  duties  and  responsibilities  of  sheriffs  in  the  discharge  of  their 
office,  are  in  the  highest  degree  intricate  and  onerous.  They  must 
perform  their  whole  duty  faithfully  and  pi"ornpt]y,  without  omission  or 
excess,  or  they  subject  themselves  to  criminal  prosecution,  as  well  as 
to  a  civil  action  at  the  suit  of  the  party  aggrieved.  Ignorance  of  the 
law  will  not  excuse  them  in  any  case,  and  error  of  judgment  will 
seldom  relieve  them  from  the  responsibility  of  their  acts.  Without 
a  guide  therefore,  to  which  they  can  resort  with  confidence  and  safety, 
it  is  not  strange  that  they  often  incur  the  severe  penalties  which  it 
has  ever  been  the  policy  of  legislatures  and  the  courts  to  impose  on 
them.  The  condition  of  coroners  and  constables  in  these  respects  is 
scarcely  better.  With  a  confident  expectation  that  this  work  will 
relieve  these  officers  from  much  doubt  and  uncertainty  in  the  discharge 
of  their  duties,  no  apology  is  offered  for  its  appearance. 

In  preparing  it  for  publication,  the  principal  aim  has  been  to  em- 
body the  whole  duties  of  these  officers  in  the  shortest  space  com- 
patible with  clearness  and  perspicuity  ;  and  every  thing  has  been  dis- 
carded that  was  not  deemed  essential  to  a  proper  understanding  of 
the  subject.  The  law  is  given  as  it  is  understood  to  be,  with  a 
reference  to  the  authorities  in  each  case.  While  the  work  is  intended 
more  especially  for  the  use  of  sheriffs,  coroners  and  constables,  it  is 
hoped  however,  that  it  will  not  prove  valueless  to  the  profession. 

July  5,   1855. 


b/i569 


GONTEJsTS. 


THE  DUTIES  OF  SHERIFFS. 


Chap. 

I.     Their  election;  qualifications  and  entering  upon  their  dut 
II.     Of  their  resiirnation  and  removal  from  office, 

III.  Of  the  under-sheriir,  deputies  and  jailers, 

IV.  Of  the  powers  and  duties  of  sherifls, 
V.     Their  powers  and  duties  in  serving  process, 

VI.     Of  the  return  of  process, 
VII.     Their  duties  as  peace  ollicers,  and  on  arrests  for 

1.  When  they  may  act  without  warrant, 

2.  Of  the  warrant  of  arrest,  . 

3.  Of  the  arrest, 

4.  Of  bringing  the  prisoner  before  the  magistrate, 

5.  Search  warrants,    . 

6.  Fugitives  from  justice  from  other  states, 

7.  Wliere  religious  meetings  are  disturbed, 

8.  Their  duties  under  peace  warrants, 

9.  Disorderly  persons, 

10.  Beggars  and  vagrants, 

11.  To  prevent  gaming, 

12.  To  prevent  racing, 

13.  Their  duties  under  the  election  laws, 
VIII.     Of  letting  prisoners  to  bail,         ^ 

IX.     Of  their  duties  in  courts  of  special  sessions, 
X.     Their  duties  in  courts  of  record, 
XI.     Drawing  and  summoning  jurors, 
XII.     Of  compelling  the  attendance  of  witnesses. 

XIII.  Their  duties  as  keepers  of  the  jails, 

XIV.  Their  duties  as  keepers  of  the  jails  in  criminal  cases, 
XV.     Of  the  execution  of  sentence,      . 

XVI.     Of  the  execution  of  process  in  civil  cases, 
XVII.     Of  arrests  in  civil  cases, 
XVIII.     Arrest  and  bail  under  the  Code, 
XIX.     Of  the  service  of  the  summons, 
XX.     Claim  and  delivery  of  personal  property, 
XXI.     Attachments,       .... 

1.  Attachments  against  foreign  corporations,  non 
resident  or  absconding  or  concealed  defend 
ants,  .... 


Section. 

es,       1-8 

9-12 

13-22 

23-27 

28-38 

39-47 

49,  121 

AS-'y.i 

54-59 

60-68 

69-73 

79-81 

82-91 

92-90 

99-101 

102-103 

104-110 

111-)18 

119 

120-121 

122-134 

135-147 

149-1.J9 

159-177 

178-207 

208-222 

223-262 

263-279 

290-299 

290-325 

326-346 

347-351 

352-363 

304-396 


304-379 


VI 


CONTENTS. 


Chap. 

XXI 


XXII. 
XXIII. 
WIV. 

\  \v. 

XXVI. 

XXVII. 

XXVIil. 

XXIX. 

XXX. 

XXXI. 

XXXII. 

XXXIII. 

XXXIV. 

XXXV. 

XXXVI. 

XXXVII. 


XX  XV  III. 


>.   Attftc'limcnts  aiiaiosl  altscoiiding,  concrnlcil  or 
non.rosiiii'iit  tiefendants, 

3.  .\ttachiiuMUs  aijainsl  forci;^n  corporations, 

Warrants  on  licniand  against  .sliips, 
Of  writs  of  nc  exeat, 

Of  the  execution,         .... 
Of  the  levy,  ..... 
Of  tlic  personal  property  subjocl  to  k-vy, 
Of  sales  under  execution, 
Sale  of  personal  property, 
Of  the  sale  of  real  estate. 
Redemption  of  lands  sold, 
Sale  of  lands  under  decrees,  . 
Executions  against  the  body,   . 
Writ  of  possession,      .... 
Imprisonment  in  civil  actions, 
Liberties  of  the  jail,   .... 
Escapes,  ..... 

Writs  of  habeas  corpus  and  certiorari, 
Writs  of  inquiry,        .... 

1.  Writ  of  infjuiry  to  assess  damages  in  an  action 

2.  Writ  of  ad  (luod  damnum, 

3.  Writ  of  inquiry  upon  the  goods  and  chattels  of 

one  convicted  or  outlawed  for  treason, 
Special  proceedings,  .... 

1.  Warrant  under  the  non-imprisonment  act, 

2.  Proceedings  supplementary  to  the  execuliun, 

3.  I'ruccss  in  actions  f)r  j)enalties, 

4.  Arrest  in  an  action  for  a  penalty  under  statutes 

relative  to  llie  manufacture  of  salt,  . 

5.  Execution  of  process  of  judicial  oll'iccrs, 

6.  Proceedings  m  ca.ses  of  insolvents, 

7.  Summoning  jurors  under  a  writ  de  lunatico  in 

quirendo,      .... 

8.  Summoning  jurors  in  |)lank  road  cases, 

9.  Warrant  for  the  delivery  of  ollicial   books  and 

papers,  .... 

10.  Warrant  to  deliver  possession  of  canal  premises 

books  and  papers, 

11.  Forcible   entries  and  detainers, 

12.  .Summary   j)roceedings  to  obtain  possession  o 

lands,  .... 

13.  Collection  of  fines, 

11.  County  treasurer's  warrant   against   collectors 

I't.    Warrants  to  collect  unpaid  taxes, 

\(\.   Nolilication.s  and  warrants  of  the  comptroller, 

17.  Their  duties  concerning  state  lands, 

H.   DiNiraining  inanimate  property, 

19.  Wrecks, 

20.  Elections,        .... 


Section. 

380 

n-^l-MDO 

3ni-j'jo 

SOT- 10*2 
4(13-424 
■I2'y-Ail 
4  12-4 06 
4(i7-177 
47'^-4'i'l 
4S2-4'J8 
499-533 
534-.'343 
.'J44-5r)3 
554-.3i38 
559-507 
50S-57G 
577-599 
G00-G:U 
632-040 
0.T2-G37 
638-639 

010 
G 11-744 
G4 1-045 

G4G-G48 
G49-G50 

051 

052-054 
055-059 

660 
661 

002 

003 
004-009 

r.7  0-077 
(iT'^-GOO 
«i91-()94 
(i;)5-7()2 
703-705 
700-708 
700-722 
723-743 
744 


CONTENTS. 


Clinp. 

XXXIX. 

XL. 

XM. 

XLII. 

XLIII. 


Process  issued  by  surrogates, 
Bonds  taken  by  .slicrifTs, 
Attachments  for  contempt, 
Actions  by  sheriffs,     . 
Actions  against  sherifTs, 


Section. 
745-701 
702-770 
771-804 

805-828 
829-S80 


THE  DUTIICS  OF  CORONERS. 

I.     Of  the  election  and  duties  of  coroners, 
II.     Crimes  cognizable  by  coroners, 

1.  Murder, 

2.  Manslaughter  in  the  first  degree, 

3.  Manslaughter  in  the  second  degree, 

4.  Manslaughter  in  the  third  degree, 

5.  Manslauglitcr  in  tlie  fourth  degree, 

6.  Excusable  homicide,    . 

7.  Justifiable  homicide,     . 

8.  Wounding, 

9.  Concealing  the  death  of  a  bastard  child 

10.  Suicide,  .         . 

11.  Principals, 

12.  Accessaries,     ... 

III.  Coroner's  inquests,       ... 

IV.  Arrest  and  examination  of  offenders,     . 

V.     Execution  of  process  when  sheriffs  are  parties 
VI.     When  coroners  to  execute  the  office  of  sheriff, 

THE  DUTIES  OF  CONSTABLES 


I.     Of  the  election  and  duties  of  constables, 
n.     Service  of  the  summons, 
IIL     Service  of  attachments, 
IV.     Service  of  warrants,     . 
V.     Venire  and  trial, 
VI.     Justice's  executions, 
VII.     Duties  of  constables  in  special  proceedings, 

1.  In  bastardy  cases, 

2.  In  cases  of  lunacy, 

.3.   Habitual  drunkards,     . 

4.  Idle  and  truant  children, 

5.  Hawkers  and   pedlars, 

6.  Under  the  higher  laws, 

7.  Summoning  jurors  to  assess  damages 

highways, 

8.  Encroachments  upon  highways, 

9.  Draining  swamps, 

10.  Search  warrants  for  goods  pawned, 

11.  Process  of  courts  martial, 

12.  When  summoned  to  attend  courts, 
VIII.     Actions  against  constables, 


on 


881-895 

890 

897,  893 

899 

9U0 

901 

902 

903 

904 

905 

900 

907 

90S,  909 

910 

911,  929 

930-949 

950-906 

9G7-975 


970-1001 
1002-1006 
1007-1014 
101.5-1022 
1023-1029 
1030-1048 
1049-10S3 

1049-1059 
1060-1064 
1065-1068 
1009 
1070-1073 
1074-1075 


openmg 


1076 
1077-lOSl 
1082-1 Of 3 
1084, 10^5 

1096 
1097-108S 
1099-1093 


fiii  CONTENTS. 

FEES  OF  SIli:Ull'FS,  CORONini.S  AND  CONSTABLES. 

Chap.  Bcclion. 

I.     Of  the  fees  of  oflicers  generally,  .  .  1091-1097 

II.      Fees  of  shoriirs,  ....  109^-1119 

1.  For  services  rendered  the  state,  .  l09S-110r) 

2.  For  srrvicea  rendered  the  county,         .  1100,  1 107 

3.  Foes  for  summoniiijT  jurors,     .  .  .  IIOS 

4.  Fees  in  civil  notions,  ....  1109 
r>.  Fees  on  executions,  .  .  .  1110-1110 
5a.  Fees  on  attachments  ngiiinst  foreign  corpora- 

tions,  non-resident  or  absconding  or  con- 
cealed debtors;  and  against  ships,  .  1117 

0.  Fees  on  writs  of  habeas  corpus,  .  .  1118 
7.  Fees  in  other  cases,     .              .              .  .  1119 

III.  Coroner's  fees,    .....  1120-1121 

IV.  Constable's  fees,  ....  1 121-1  i:U 

APPENDIX. 

Appendix,  .....  1132-1170 

1.  Duties  of  sherilTs  and  constables  under  the  act 

entitled  an  act  for  the  prevention  of  intem- 
perance, pauperism  and  crime,     .  1133-1156 

2.  Stolen  property,  ....  1157 

3.  Duties  of  sheritrs  in  suppressing  riots,  1159,  lir)9 
•1.  Compensation  of  the  militia,  called  out  in  aid  of 

the  civil  authorities,         .  .  1100,1102 

5.  Appointment  of  criers  for  courts,  .  .  1163 

6.  Service  of  process  on  foreign  corporations,         1164-1168 

7.  Attachments  against  ships,       .  .  .  1109 

8.  Warrant  of  the  comptroller  against  railroads,  .  1170 

FORMS. 

No. 
Forms  for  sheriffs,  .....         1-295 

Forms  for  coroners,        .....     290-340 
Forms  for  constables,     .....     341-381 


INDEXES. 

page. 

General  index,  ......     583-000 

Index  to  forms,   ......     001-070 


THE  DliTIES  OF  SllEIUEFS. 


CHAPTER  I. 

THEIR  ELECTION ;  QUALIFICATIONS  AND  ENTERINO  UPON  THEIR  DUTIES. 

^  1.  There  shall  be  elected,  at  the  general  election,  a  sheriff*  for 
each  county  in  this  state,  by  the  electors  thereof,  respectively,  once  in 
every  three  years,  and  as  olten  as  vacancies  shall  happen.'  On  the 
erection  of  a  new  county,  the  sherilf  shall  be  chosen  at  the  treneral 
election  succeeding  the  erection  of  such  county,  or  at  such  other  time 
as  the  legislature  shall  direct.'^  When  the  board  of  county  canvassers 
shall  have  determined  who  is  elected  to  the  oilice  of  sherilf,  the  county 
clerk  shall  prepare  and  certify  a  copy  of  such  determination,  and  shall, 
without  delay,  deliver  the  same  to  the  person  so  elected.^  The  person 
so  chosen  shall  enter  upon  the  duties  of  his  office,  except  where  he  is 
chosen  to  fill  a  vacancy  then  existing,  on  the  first  day  of  January  fol- 
lowing the  election  at  which  he  shall  be  chosen.''  He  shall  hold  his  of- 
fice for  three  years,  whether  he  is  elected  at  the  close  of  a  full  term  of 
the  office,  or  to  fill  a  vacancy  f  and  he  may  continue  to  discharge 
the  duties  of  his  office  after  the  expiration  of  his  term,  until  he  shall 
have  been  served  with  the  certificate  of  the  county  clerk,  that  his 
successor  has  duly  qualified.' 

^  2.  No  person  shall  be  capable  of  holding  the  office  of  sheriff',  who 
at  the  time  of  his  election  or  appointment  shall  not  have  attained  the 
age  of  twenty-one  years,  and  who  shall  not  then  be  a  citizen  of  this 
state;''  and  he  must  reside  in  the  county  for  which  he  is  chosen.^  He 
can  hold  no  other  office.'  And  neither  he,  nor  his  under-sherifl!',  dep- 
uty, or  clerk  or  any  coroner  shall,  during  his  continuance  in  office, 
practice  as  counsellor,  solicitor  or  attorney,  in  any  court  of  law  or 
equity.'"     He  cannot  be  bail  in  any  action,"  nor  can  he  or  his  deputy 

'  Cons.  art.  X.  <\l.  '■  \  R.  S.  117,  <>10.  6  i  r   g   |02  uL'). 

I  R.  S.  81«)  y)\{),  4th  cd.  LI.  ;li2S,  v;l;],4th  cd.  LI.  :j0.s,  v\i:j,  4th  ed. 

2  1  R.  S.  11:5,  ^}oO.  '1  R.  S.  4:J8,  <f,^.  o  c„ns.  art.  X.  <A. 

Id.  321,  \V'7,  4th  cd.  LI.  fiS2,  <,)88,  4th  cd.  1  R.  S.  :51'.»,  (V-tl),  4th  cd. 

3  1  R.  S.  %4,  v\21,  4th  cd.  12  Wend.  275.  '"  1  R.  S.  1 10.  '<v21. 

1 1  R.  S.  110  (^-.i.  21  Id.  223.                               Id.  321 ,  </>:],  4ih  cd. 

Id.  827,  \v'.,  4tli  cd.  '  1  R.  S.  IIG,  \U.                       "  20  Johu.  12'J. 

-  2  Wond.  272.  LI.  32J,v,l ,  4th  cd. 

II  Wend.  132,  511.  23  Wcud.  502. 

2 


2  01'  TIIi:ill  F.LErriON  ;  (JUALil'K'ATlOXS 

execute  process  io  any  suit,  artion  or  procoediui;  in  which  he  is  a  par- 
ty, or  in  which  ho  is  inlcrcstcil,  though  he  is  not  a  jtarty  to  the  record.' 
In  such  case  the  process  nn^st  he  executed  hy  the  coroners  of  the 
county,  or  one  of  thein,  or  the  court  may,  in  certain  cases,  appoint  oM- 
sors  to  execute  such  process.'  But  the  fact  that  one  of  the  sherill's 
(le|)Uties  is  a  party  to  a  suit,  does  not  make  the  shcritV  interested  in,  or 
a  party  thereto,  so  as  to  require  the  service  of  the  process  to  be  made 
by  the  coroner.^  Nor  d»tcs  it  make  any  dinbrencc  that  such  action  is 
for  an  act  done  by  such  deputy  in  his  ollicc*  The  sherilf  or  other  of- 
ficer and  the  de]nity  of  such  sherilF  or  oillcer,  or  any  cniistahle'  hold- 
ing any  execution  and  conducting  any  sale  of  proptnty  in  i)ursuance 
thereof,  sliall  not  directly  or  indirectly  ymrchase  any  ])roj)erty  whatever 
at  any  sale  by  virtue  of  such  execution  ;  and  all  ])urchases  made  by 
sucli  sherill",  ofliccr  or  deputy,  or  to  his  use,  shall  be  void.*  IJut  this 
prohibition  does  not  apply  to  a  jailer  or  turnkey.^  Ami  where  a  dep- 
uty is  plaintiff  in  an  execution,  or  interested  therein,  he  may  purchase 
j)roperty  on  a  sale  under  it,  where  such  process  is  held  by  the  sherill" 
or  another  deputy  and  the  sale  is  conducted  by  them,  to  save  his 
debt.*  And  the  sheritl"  is  ineligible  to  the  office  for  the  next  three 
years  after  the  close  of  his  term  of  office.'  But  this  limitation  of  the 
office  to  one  term,  does  not  apply  to  the  case  of  a  person  appointed  by 
the  governor  to  perform  the  duties  of  the  office  during  a  vacancy 
therein. 

^  3.  The  name  of  the  person  elected  to  the  office  of  sheriff,  shall  be 
entered  bv  the  secretary  of  state  in  a  book  to  be  kept  in  his  office  ; 
specifying  the  county  for  which  lie  is  elected,  his  ]>lace  of  residence, 
the  office  for  which  he  is  elected,  and  his  term  of  oflice.'"  And  before 
the  sheriff  enters  upon  the  duties  of  his  office,  and  within  fifteen  days 
after  notice  of  his  election  by  the  county  clerk,  or  within  fifteen  days 
after  the  comuienccment  of  his  term  of  office,  he  shall  take  and  file 
with  the  county  clerk,"  the  constitutional  oath  of  office.'*  And  he 
shall,  within  twentv  days  after  such  notice  of  his  election,  or'-'  before 
he  enters  upmi  the  duties  of  his  office,  execute  a  joint  and  several  bond 
to  tlie  people  of  this  state."  in  the  penally  of  s'jo.ooo  with  two  sure- 
ties, if  in  tin*  r'\[y  and  county  (»f  A'ew-^  ork,  and  in  the  penally  of 
bH>,<'(»(>,  with  two  or  more  sureties,  if  in  any  of  the  other  counties  of 

•  1  Komnn,  €,].  a  VJ  Pi.k.  .l.tO.  i«  1  U.  S.  1 1:.,  (yW,. 

ITi  Ji.lin  U.!.  *  2  How.  I'r.  Kcp.  110.  M.  :i:i7,  *\i:t,  iili  «(1. 

'2ii  Wni.l  :;i  I.  0  U  U  H.  'iVJ,  ^^I'lO.  o  1  H.  S.  liid,  <ys\,  .siil..  0. 

«  2  R.  H.  -fJl,  v»/>.  M.  HH,  <A:\2,  Jlli  cil.  I<1.  MU,<)21,  nuI..  O.-lili  ..l. 

M  r,fM  ^.ih  nil  imI.  •  -J  11.  S.  ;i7i»,  <yl\.  "3  1  U.  S.  ll!t,(/V.iu,  1. 

i!  l;  ^\,  :•.  M.  »;|H, »).',(».  M.  :!.•!(),  yy_"j, ';{,  .h|,  f,l. 

M  , ,  H,  nil  t<I       '  »  NV.n.i.  171.  I'.:  W.  11.1.  1S2. 

f'(-l.     •  11  '  •  .1  Cow.  ;»0.  "  in  Wi'lKl.tMl-'. 

•2  n.  i*'.M.  %\\.  11'  »  1  K.  i<.  aut,  vi;».-ltli  cd.        '♦  I  U  H.  :;7H,  <f,7. 

id.  01:J,  </;11,  1-',  Ith  td.         four  Art  X.  ^I.  M.  (i'JO,  ^V2i,  4tli  cd. 


AND  i:nti-:rix(;  cpon  tiii:jr  ditii:s.  :i 

this  stnte,'  wliicli  hond  sliiill  he  filed  willi  llio  dork  of  the  county  for 
which  such  .shcrilT  is  chosen,  within  the  same  time  lie  is  re<juired  to 
take  and  file  tiic  oath  of  ollicc.'^  Al  the  time  of  executing  the  bond, 
the  clerk  with  whom  the  same  is  to  he  fded,  shall  administer  an  oath 
to  each  of  the  sureties  thereto,  that  he  is  a  freeholder  within  this  stale, 
and  is  wortji,  if  in  the  city  and  county  of  New- York,  820,000 ;  and  if 
in  any  other  county,  such  sum  as  shall  he  proportionate  to  the  num- 
ber of  sureties  hound  in  such  bond,  to  the  amount  of  the  bond  re- 
quired in  such  county,  over  and  above  all  debts  whatsoever  owing  by 
Iiim.  Such  oath  must  be  endorsed  on  the  bond,  anrl  be  siirned  by  each 
of  the  sureties  in  the  presence  of  the  clerk,  who  shall  not\vithstandin;jr, 
judge  and  determine  the  competency  of  such  sureties.'  Such  security 
shall  also  be  renewed  within  twenty  days  after  the  first  Monday  of  Ja- 
nuary in  each  year,  after  such  shcrilV  shall  have  entered  upon  the  du- 
ties of  his  oflice  ;  but  the  county  shall  never  be  made  responsible  for 
the  acts  of  the  sherilf.  Such  renewed  security  shall  be  in  the  same 
amount,  and  be  given  in  the  same  manner,  and  be  subject  in  all  re- 
spects, to  the  same  regulations  as  the  original  security  recjuired  from 
such  sherifl?  If  there  be  a  vacancy  in  the  oflice  of  county  clerk,  or  the 
county  clerk  be  absent  from  the  county,  or  be  incapable  of  performing 
the  duties  of  his  oflice,  it  shall  be  lawful  for  the  county  judge  to  decide 
upon  the  competency  of  such  sureties,  and  for  that  purpose  to  admin- 
ister any  oath  and  make  any  examination  that  may  be  required.^ 

^  4.  Every  bond  executed  by  an  ofllcer  pursuant  to  law,  for  the 
faithful  discharge  of  the  duties  of  his  office,  shall  be  deemed  to  be  in 
force  and  obligatory  upon  the  principal  and  sureties  therein,  so  long  as 
such  oiFicer  shall  continue  to  discharge  the  duties  of  his  oflice,  and  un- 
til his  successor  shall  be  appointed  and  shall  have  duly  qualified.®  But 
such  sureties  shall  be  exonerated  from  all  liability  by  reason  thereof, 
for  all  acts  or  omissions  of  the  principal  after  he  shall  have  duly  re- 
newed any  such  bond.''  And  in  the  case  of  a  sheriff',  it  is  further  pro- 
vided, that  any  default  or  misfeasance  of  the  under-sheriff',  while  he 
acts  as  sheriff"  during  a  vacancy  in  the  oflice,  as  well  as  before,  shall 
be  deemed  a  breach  of  the  condition  of  the  sherifl^'s  bond  who  ap- 
pointed him.^ 

j5  5.  If  any  person  shall  execute  any  of  the  duties  or  functions  of 
any  oflice,  without  having  taken  or  subscribed  the  oath  of  office  re- 
quired by  law,  or  without  having  executed  or  filed  in  the  proper  office 

'  1  R.  S.  378,  ()68.  *  1  R.  S.  379,  d'O.  -"2  11.5.  120,  ^30. 

Id.  69G,  <jl25.  Id.  097,  <jl27, 4th  cd.  Id.  331,  <\33. 

212  Wend.  481.  Cons.  art.  X.  ()1.  13  Wend.  448. 

3 1  R.  S.  379,  ()69.  s  1  R.  S.  377.  ^66.  «  1  R.  S.  379,  (S72. 

Id.  C96,  <>12G,  4th  ed.  Id.  r.90,  <)92,  4th  ed.  Id.  C97,  6129,  4th  ed. 

« 1  R.  S.  120.  <y20. 

Id.  331, 1)32,  4th  cd. 


4  OV  THRIU  I-LKCTION;  (aiALIFICATIONS 

any  l><»nil  within  tlii«  time  retiuiroil  by  l;i\v.  In*  sliiiU  r.)it'rit  tlio  ollice  to 
which  he  may  he  elecleii  or  appointed,  and  shall  be  deemed  fjuilty  of 
a  misdemeanor,  punishable  by  line  or  imprisonment.'  In  Huch  case, 
however,  so  far  as  the  rights  of  lliinl  jx;rsons  and  the  pubhc  are  con- 
cerned, he  is  an  oflicer  dc  facto, ^ 

^  r».  'When  the  sheriff  elect  shall  have  taken  the  oath  of  office,  and 
filed  the  bond  recjuired  by  law,  the  clerk  of  the  county  shall  errant  to 
him  a  certificate  under  his  ollicial  seal,  that  he  has  so  qualified  and 
given  such  security  ;'  which  certificate  shall  be  served  by  the  new 
sheriff  upon  the  former  sheriff,  whereupon  his  powers  a3  such  sherilV, 
except  when  otherwise  expressly  provided  by  law,  shall  cease,*  and 
within  ten  days  thereafter  he  shall  deliver  to  his  successor, 

1.  The  jail,  or  jails,  if  there  be  more  than  one,  of  the  county,  with 
all  their  appurtenances  and  jtroperty  of  the  county  therein  : 

2.  All  the  prisoners  then  confined  in  such  jail : 

3.  All  papers  authorizing  or  rclatinij  to  the  confinement  of  such 
prisoners,  and  if  any  such  jirocess  shall  have  been  returned,  a  state- 
ment of  the  contents  thereof,  and  when  returned : 

4.  All  writs  of  capias  ad  rrspondmdnm  and  other  mesne  process, 
and  all  precepts  and  other  documents  for  the  summoning  of  a  grand 
or  petit  jury  then  in  his  hands,  which  shall  not  have  been  fully  ex- 
ecuted l)y  him  : 

5.  All  executions,  attachments  and  final  process  then  in  his  hands, 
except  such  as  shall  have  been  executed,  or  he  shall  have  begun  to 
execute,  bv  the  collection  of  money  thereon,  or  by  a  levy  upon  prop- 
erty in  pursuance  thereof.* 

0.  When  one  is  confined  in  jail,  or  on  the  limits  on  a  ca.  sa.  at 
the  time  of  such  assigning  and  delivery  of  such  jail,  if  such  writ  is 
not  then  returnable,  it  shall  be  delivered  to  the  new  sheriff',  and  shall 
be  returned  by  him,  with  the  proceedings  of  the  old  and  the  new 
sheriff  thereon.' 

7.  Hut  the  former  sheriff  shall  return  in  his  own  name,  all  writs  fully 
executed  by  him,  and  shall  comjileto  the  execution  of  all  final  pro- 
cess and  attachments  which  he  shall  have  begun  to  execute  by  the 
collection  of  money,  or  making  a  levy,  pursuant  to  the  direction 
thereof.' 

8.  At  the  time  of  such  delivery,  the  former  sheriff  shall  execute  an 
instrument  in  writing,  recitini,'  the  ]>roperty,  process,  documents  and 

>  1  R.  8. 121.  v-il.  '  •-  K  «  -l-'-H,  <>r.K.  '  •!  u.  s.  •V.v.\  \fri. 

H.  :'A\.()M,  U\\  ctl.  I'l.  Wi,  ^KH,  -nil  c(l.  I'l  ••h:i,  ip'l,  illi  «•<!. 

C'.ns.  .irt   X  <■>!  '1\  W.-itd.  TIA.  r,  Hill,  liHI. 

M  iH-n.  &7.'..  1'^    "      --iTr..  'u  II.  s.  .i;;'.t,  v)7i. 

3  2  K.  B  4JWt,  <'/>r,7,  H  ■•  2  U.  .S.  ll'.H,  (f,\\  I.l.  C«3,  (/.Jl ,  4lb  cd. 

I.J.  0b2,  <)()hl,  f,  4lh  cd.  Id   ••.H2,  <)S<,i,  liji  .d  i  Cow.  W. 

b  UiU,  2U1. 


AND  ENTERING  I'I'ON  'i'lIKIIl  DUTIES.  5 

inisoners  delivered,  and  specifyini,'  i)artieulaily  llic  process  and  otiier 
authority  by  vvliich  each  prisoner  was  conimilted  and  is  detained,  atid 
whether  the  same  is  returned,  or  is  delivered  to  such  new  sheiill'.  It 
is  not  necessary  that  the  names  of  all  tin;  parties  to  the  })rocess  de- 
livered over,  or  by  which  a  i)risoner  is  held,  shr)uld  he  ;j;iven.  It  ia 
suflicient  that  the  new  sherill"  has  notice  of  all  the  executions  against 
a  prisoner.'  And  a  notice  of  the  jirisoners  by  jiarol,  or  by  writing, 
not  by  indenture,  is  sullicient  if  the  new  sheriff  do  not  object.'^  Such 
instrument  shall  be  delivered  to  such  new  sherilf,  who  shall  acknow- 
ledge on  a  duplicate  thereof,  the  receii)t  of  the  ])ropcrty,  jiroccss,  doc- 
uments and  prisoners  therein  specified,  and  shall  deliver  such  dupli- 
cate and  acknowledgment  to  such  former  sheriff.'  If,  at  the  time 
of  the  (|ualifying  of  the  new  sheritT,  the  office  is  vacant  and  the  duties 
thereof  are  discharged  by  the  under-sheriff,  a  coroner,  or  other  per- 
son, such  person  so  discharging  the  duties  thereof,  shall  comply  with 
the  preceding  provisions  as  to  the  delivery  over  of  the  jailj  and  prop- 
ertv,  and  perform  the  duties  in  respect  thereto  refiuired  of  the  former 
sheriff.* 

^1.  If  a  prisoner  confined  on  the  limits,  on  civil  process,  is  not  as- 
signed within  ten  days,  he  shall  be  at  liberty  to  go  at  large.  The  new 
sheriff  has  nothing  to  do  with  him,  and  cannot  even  bring  an  action  on 
a  bond  for  the  limits,  and  the  power  of  the  old  sheriff  is  at  an  end.^ 
And  so  if  the  old  sheriff  fails  to  mention  in  his  list,  one  of  his  prisoners, 
or  one  of  several  detainers  against  a  prisoner,  and  he  escapes,  the  old 
sheriff,  and  not  the  new  one,  is  liable."  The  new  sheriff  shall  be 
charged  only  with  the  prisoners  of  which  the  old  sheriff  gave  notice.^ 
The  new  sheritf  is  only  bound  to  receive  the  prisoners  from  the  old 
sheriff  at  the  county  jail,  or  at  the  place  for  the  time  used  as  the 
county  jail ;  yet  if  the  old  sheriff  deliver  his  prisoners  to  his  suc- 
cessor, who  receives  them  out  of  the  jail,  the  old  sheriff  is  discharged.* 

§  8.  If  the  former  sheriff,  at  the  close  of  his  term,  or  when  he  has 
been  removed  from  office,  refuses  to  deliver  possession  to  the  new 
sheriff,  or  to  the  person  appointed  to  discharge  the  duties  of  the  otlice, 
Jie  will  be  guilty  of  a  misdemeanor,'  and  such  successor  may  take 
possession  of  the  jails,  and  the  custody  of  the  prisoners,'"  and  apply 
to  a  justice  of  the  supreme  court,  or  the  county  judge  of  the  county 
where  such  late  sheriff  resides,  to  compel  the  delivery  of  the  process 
and  documents.     If  such  judge  is  satisfied  by  the  oath  of  the  com- 

'  0  John.  85.                              <  -J  R.  S.  4110,  ()74.  ^  Sew.  31. 

-  Watson  on  sheriff,  20.                M.  t.iS.3,  p4,  4th  td.  Wat.  20. 

Sewol        do.          20.          ^21  Wend.  223.  •' 1  R.  S.  124.  ()50. 

'  2  R.  S.  430,  <)70.                     '•  Sew.  i9.  Id.  33-5,  v>60,  4th  ed. 

Id.  C83,  v\'JO,  4th  cd.                Wat.  20,  22.  '"  2  R.  S.  430,  <>73. 

1  Sew.  20.  Id.  C83,  <)'Jd.  4th  cd. 


6  OF  Tiii:iR  i:lkctk>n,  «>rAMriCATioNs,  .vr. 

plaiiiant,  and  such  other  testimony  as  shall  In*  ollbrcd,  lliat  any  such 
process  or  «IornineiJls  are  withheld,  ho  shall  tyrant  nn  order  direcliii^ 
such  late  sheriir(or  if  he  is  dead,  the  i»ersoM  in  whose  hands  the  sanio 
may  he,')  tt>  show  cause  hefore  him,  \vilhin  some  short  and  reasonahle 
time,  win  he  shouM  not  he  c«'n»iK'lled  to  deliver  the  same.  At  tin; 
time  ap)>«)inted.  <mi  |)roof  ol  the  service  of  the  order,  such  judtre  shall 
])roceed  to  iinpiire  into  the  circumstances  ;  and  if  the  jterson  charged 
shall  make  allulavit  before  such  olFiccr  that  he  has  truly  delivered  over 
to  the  claitnant  all  such  process  and  documents  in  his  custody  and  aj)- 
pertaininc;  to  the  olVice,  he  shall  he  discharged.^  But  if  such  i)erson 
shall  not  make  such  oath,  and  it  shall  appear  that  any  such  process  and 
(locumcnts  are  withheld,  such  jud^e  shall,  hy  warrant  commit  such 
person  to  the  county  jail,  there  to  remain  until  he  shall  deliver  tho 
same,  or  be  otherwise  discharged  by  law.'  In  such  case  too,  if  re- 
quired by  the  claimant,  such  judge  shall  issue  his  warrant,  directed  to 
the  sheritV  or  any  constable,  commanding  him  in  the  day-time,  to 
search  such  places  as  shall  be  designated  in  such  warrant,  for  such  pro- 
cess and  documents,  and  to  seize  and  bring  theni  before  the  otlicer 
issuing  the  warrant  ;*  and  upon  their  being  brought  before  him,  he 
shall  in(|uirG  and  examine  whether  the  same  ajipcrtain  to  such  ollice, 
and  he  shall  cause  the  same  to  be  delivered  to  such  claimant.'  But 
the  title  of  the  claimant  to  the  oHice  must  be  free  from  reasonable 
<loubt  before  the  judge  can  act,  else  the  application  to  obtain  jiosses- 
sion  of  the  oflice  must  be  by  (/uo  warranto.^  And  so  if  another  per- 
son shall  usurp,  intrude  into  or  unlawfully  hold  or  exercise  the  ollice  of 
sherill*  the  atlurney-gcneral  may  file  an  information  in  the  name  of 
the  peojjle,  upon  his  own  information,  or  upon  tho  complaint  of  any 
j)rivate  party,^  and  if  jud-jmcnt  be  in  favor  of  the  claimant,  he  shall 
be  entitled,  after  taking  the  (->ath  of  ollice  and  executing  the  olliciul 
bond,  to  take  upon  himself  the  execution  of  the  duties  of  the  ollice ; 
and  it  shall  be  his  duty,  imtnediately  thereafter,  to  demand  of  the  de- 
fendant, all  the  booki  and  jiapi-rs  in  his  custody,  or  within  his  power, 
belonging  to  the  ollice."  ll"  the  defendant  shall  refuse  or  neglect  to 
deliver  over  such  books  or  paj)ers  pursuant  t<j  the  demand,  he  shall  bo 
deemed  guilty  of  a  misdemeanor,  and  the  same  j)roceeiliMgs  shall  bo 
had  and  with  the  same  eflbct,  to  compel  the  delivery  thereof  as  is  above 
prescribed.* 

MRP  li").  </>C>.  <  1  R.  R.  12.").  </>5l,  M.  '  Cmlo,  (M2. 

M  :i'.c..  •'cr,  tth  o,].  h\  :nr,,  Vj.yvi,  cc,,  .iih  cd.    •C<mI«>,  uluT. 

M.  .t;'  II.  <  .1.        M  .;  ;'•.  ','.'.,  lili  cd.  11  U.irb.  401. 

»]  R.  H   I- .  <  V'  •■"••  '*'>  "'".  '•'♦'• 

Id.  3a«,  yiOiJ,  QC,  4lh  cd.         1 1  Barb.  306. 


OF  TriiiiR  Ri:si(;.\A'ri(»N,  (Vc.  7 

CHAPTER  II. 

OF  THEIR  RESIGNATION  AND  REMOVAL  FROM  OFFICE. 

'  5  ^-  '^'''*'  •'^'"''il'  "i-'^y  resign  his  ofTico  to  the  f^^overnor,'  and  the  of. 
flee  will  hocoiiu!  vacant  on  the  slierill's  neifk'ctinjj;  or  refusin;:  to  tuke 
the  constitiUioiKil  oath  ofotlice,'^  or  give  or  renew  the  necessary  bond  ;' 
on  his  convicti(jn  of  an  infamous  oflence,  involving  a  violation  of  his 
oath  of  olTice  ;^  on  his  accei)tance  of  another  office,  the  duties  of 
which  are  incompatible  with  those  of  the  olhce  of  sheriif,'  or  on  liis 
ceasing  to  be  an  inhabitant  of  the  county  lor  which  he  was  chosen." 
And  where  a  county  is  (hvided,  and  a  jjarl  of  the  old  county  is  set  off 
and  a  new  county  formed  with  a  new  name,  the  sherilV  or  any  coro- 
ner residing  in  the  old  county,  will  be  entitled  to  hold  and  exercise  the 
duties  of  their  respective  oflices,  within  the  limits  of  such  ])art  of  the 
old  county,  during  the  remainder  of  their  respective  terms  of  office: 
but  if  the  sheriff  or  any  coroner  resides  within  the  new  county,  whether 
it  be  formed  out  of  the  old  county  exclusively,  or  of  a  part  of  it  and 
other  counties,  his  ollice  is  gone.'' 

^  10.  The  governor  shall  declare  the  office  of  any  sheriff  vacant, 
whenever  a  judgment  shall  be  obtained  against  him  ff)r  a  breach  of 
the  condition  of  his  .official  bond.^  And  so,  where  the  sheriif  is  in 
custody  thirty  days,  for  the  non-payment  of  moneys  received  by  him 
by  virtue  of  his  oflice,  he  may  be  removed  by  the  governor.'  lie 
may  also  be  removed  by  the  governor  on  charges  preferred  against 
him,  on  giving  him  a  copy  thereof',  and  allowing  him  an  opportunity  of 
i)eing  heard  in  his  defence,  before  any  removal  shall  be  made.'"  When 
the  governor  shall  have  received  any  charges  against  the  sheriff,  and 
shall  have  served  a  copy  thereof  upon  him,  if  the  sheriif  does  not  ad- 
mit their  truth,  he  should  immediately  make  denial  thereof,  in  writing, 
and  serve  the  same  upon  the  governor.  Upon  such  denial  being 
made,  the  governor  may  direct  the  district  attorney  of  the  county  in 
which  such  sheriff  shall  be,  to  conduct  an  inquiry  into  the  truth  of  the 
charges  made,  who  shall  give  at  least  eight  days  notice  to  the  accused 
of  the  time  and  place  of  hearing  before  the  county  judge."  The  dis- 
trict attorney  may  issue  subpoenas  in  his  own  name  to  compel  the  at- 
tendance of  witnesses  whom  he  shall  deem  material,  and  such  judge 
shall  have  j)0wer  to  enforce  obedience  thereto   by  attachment,  and  to 

'  1  R.  S.  121,  vyW,  sub.  4.         MR.  S.  121 ,  v>34.  .sub  5.  «  1  R.  R.  120.  ^^40. 

I.l.  :j:52,  (\3G,  .«ub.  4,  4th  cd.     Id.  882,  <yiS,  sub  6.  Id.  :!:58.  <A4,  4th  cd. 

2  1  R.  S.  121,  (yM.  5  2  Hill.  <J8.  '.  1  R.  s.  :!,so,  (yl. 

Id.  331,  <)  34,  4th  cd.  8  Cow.  212.  Id.  OUT,  v\134.  4th  cd. 

1  R  S.  122,  v\34,  .sub  G.        «  1  R.  S.  122,  ()31,  sub  4.  '» 1  R.  S.  123,  ^44. 

1.1.  332,  v>3.s,  sub  G,  4th  ed.      Id.  332,  (y%<  sub  4,  4th  cd.      Id.  .333,  (A'J,  4th  ed. 

H'on.s.  .-irt.  X,  <)l.  ^21  Wend.  577.  "  1  R.  S.  123,  (vlo. 

1  R.  S.  yi'J,  <)iO,  4th  ed.  Id.  334,  yJO,  4th  cd. 


8  <'i'  T[n:iii  Ri:si(;NATif>N  and 

cotnniil  nny  one  wlio  slmll  rdiiso  lo  Im«  sworn  or  t<»  answer,  as  the 
county  cojut  would  liavr  in  a  criminal  case  iHMiding  therein.'  On 
the  ai>plirali<»n  of  the  arrusod  to  the  district  attorney,  or  to  any  justice 
of  the  |>eace,  he  shall  he  entitled  to  tlm  liku  process  ofsuhpcrua,  which 
may  he  enforced  in  the  same  manner  hy  the  county  judj^o  before  wlmiu 
the  incjuiry  is  jH'ndinc:.*  At  the  time  and  place  meutionetl  in  the  no- 
lice,  such  county  judiic. shall  proceed  to  take  the  testimony  of  the  wit- 
nesses produced  before  him  by  the  district  attorney,  or  by  the  accused 
ofllcer.  The  witnesses  shall  be  sworn  l)y  such  judije  :  every  answer 
given  by  them  to  any  question  which  either  parly  shall  require  to  be 
reduced  to  writinir.  shall  be  written ;  their  testimony  shall  be  read  to 
and  subscribed  by  them,  ami  shall  be  certified  by  the  jiulge  taking  the 
same,  and  be  delivered  to  the  district  attorney,  to  be  transmitted  by 
him  to  the  governor.'  The  duties  of  the  judge  upon  the  inquiry  arc 
merely  ministerial,  and  he  has  no  right  to  pass  upon  the  competency  of 
nny  testimony,  or  the  form  or  jiertinency  of  any  (juestion,  but  is  to  re- 
duce to  writing  every  answer  that  either  party  may  require. 
;S  11.  And  if  any  sherifl',  jailer,  coroner,  marshal  or  constable, 

1.  Wilfully  and  corruptly  refuse  to  execute  any  lawful  i)roccss  di- 
rected lo  them  or  any  of  them,  reciuiring  the  ajiprehension  or  conhne- 
ment  of  any  person  charged  with  a  criminal  ollbnce  :  or, 

2.  Shall  corrujUly  and  wilfully  omit  lo  execute  such  process  by  which 
such  |>erson  shall  escape :  or, 

3.  Shall  wilfully  refuse  to  receive  in  any  jail  under  his  charge,  any 
ollender  lawfully  committed  to  i^uch  jail,  and  ordered  to  be  confmed 
therein,  on  any  criuiinal  charge  or  conviction,  or  on  any  lawful  process 
whatever:  or, 

1.  Sh;dl  wilfully  suffer  any  oOendcr  lawfully  committed  to  his  cus- 
tody lo  escape  and  go  at  large :  or, 

5.  Shall  receive  any  gratuity  or  reward,  or  any  security  or  engage- 
ment for  the  same,  to  procure,  assist,  connive  at,  or  jtermil  any  prisoner 
in  his  cusl(>dy,  on  any  civil  j)rocess,  or  on  any  criminal  charge  or  con- 
viction, to  escape,  whether  such  escape  be  attempted  or  efl'ecled  or  not ; 

He  shall,  upon  conviction,  be  punished  by  imprisonment  in  a  county 
jail  not  exceeding  one  year;  or  by  line  not  exceeding  8 lODO,  or  by 
both  such  fine  and  imprisonment,  :uid  shall  forfeit  his  oflico  and  bo 
forever  dis(jualified  to  hold  any  ollice,  f)r  jtlace  of  trust,  honor  or  profit, 
under  the  laws  or  constitution  of  this  state.*  So  a  violation  of  the 
.statutes  concerning  the  "arrest  of  persons  on  civil  process,"*  and  of 

'  1  U.  H.  l'2n.  <yir,.  1  II  f  TJt  nv                     1  Art.  1.  Til.  0,  di.  7,  M  Tart 

I.l.  .UU.VjI.llhtML  I'l                         I                 u.  a. 

3  I   It.  8.  I'JI.vlT.  «'Jit                         I 

1<1.  Ul,  <^2,  lib  cU.  M.  >^<u,  v,l-^  IJ,  lUi  td. 


Ui:.M()VAL  FllUM  01'FICL:,        •  [) 

llie  maniKM'  of  conlinitlrr  prisoners  in  jail,'  is  (leclared  to  he  a  misdo- 
iiieanor,  and  sulijecls  the  olliccr  to  indictment,  and  upon  conviction 
lliereol,  in  addition  to  any  other  punishment,  he  shall  forfeit  his  oflice 
or  j)Iace,  and  shall  forfeit  to  the  party  air^^'rieved  three  limes  the  dama- 
t,a*s  found  hy  the  jury."  A  violation  of  tlu!  provision  of  the  statute  rela- 
tive to  the  introduction  of  spiriluons  liipiors  in  u  county  jail,  is  also 
declared  :i  misdemeaiKjr,  anil  suhjecls  the  otl'ender  to  impri.sonincnt  not 
(ixceedini^'  one  year,  and  to  a  fine  not  cxceedint;  two  hundred  and  fifty 
dollars,  or  huih  ;  and  every  sheriff  or  other  oflicer  so  convicted,  shall 
lose  hisollicc.^  And  if  he  or  any  constable,  marshal,  coroner  or  other 
oliicer,  shall,  for  any  reward,  or  gratuity  paid,  or  agreed  to  be  paid, 
grant  to  another,  the  right  or  authority  to  discharge  any  of  the  duties 
of  their  respective  olTices,  he  or  they  shall,  upon  conviction,  be  deemed 
guilty  of  a  misJemeanor ;  and  in  addition  to  the  above  punishment, 
shall  forfeit  the  office  and  be  forever  disabled  from  holding  such  office.* 
The  ])erson  making  such  agreement  shall  also  be  guilty  of  a  misde- 
meanor,^ and  the  agreement  shall  be  void.''  liut  an  agreement  with  a 
deputy  sheritr,  conditioned  for  jjis  paying  over  to  the  sheritf,  one  half 
of  his  fees  arising  i'rom  the  business  done  by  him  as  such  deputy,  is 
not  within  the  statute.  It  is  otherwise  however  if  the  princi[»al  is  to 
receive  a  gross  sum  which  is  not  to  come  out  of  the  office/ 

'^  12.  In  case  of  a  vacancy  in  the  oflice  of  sherift",  the  under  sheriff;* 
or  if  there  be  no  under  sherilf,  one  of  the  coroners  of  the  county,*  or 
person  to  be  designated  by  the  county  Judge,'"  shall  discharge  the  du- 
ties of  shcritF  until  the  governor  shall  appoint  some  fit  person  who  is 
eligible  to  the  office,  to  execute  the  duties  thereof."  Such  person,  so 
appointed  by  the  governor,  shall  discharge  the  duties  of  such  oiiice 
mitil  the  commencement  of  the  political  year  succeeding  the  general 
election  after  his  appointment.'-  But  he  may  be  removed  by  the 
governor  before  the  expiration  of  such  time,  without  cause,  and  he 
may  appoint  another  person  in  his  place. '^  When  there  shall  be  a 
failure  to  elect  a  sheriff  at  a  regular  election,  by  reason  of  two'or 
more  candidates  having  an  e(pial  number  of  votes  ;  or  where  the  rin-ht 
of  oifice  of  the  sheriff  shall  cease  before  the  commencement  of  the 
term  of  service  for  which  he  was  elected,  a  sherifl'  shall  be  chosen  at 
a  special  election."  If  any  vacancy  be  not  supplied  at  the  general 
election  next  succeeding  the  happening  thereof,  a  special  election  shall 

'  Art.  2,  Tit.  C  cli.  7,  3d  Part ,«  Id.  {\?,8.  'o  1  R  S  .381  u8'> 
K.  S.  v>)S.  0,  1  (».                    c  Id.  \y.\0.  1,1.  G'J8,  <)lh,  4'tli  ed. 

2  li  R.  S.  liiS,  ull.  7  I  Hill,  21.  'MRS.  :m,  (yu,  4tii  cd. 
Id.  072,  Ul,  4(h  cd.             8  1  K.  s.  370,  ,372.  L.^^vs,  lb46,  Ch.  4,  ^\1. 

3  2R.  8.431,  v3:JI.  Id.  6<j7,u121i,  4th  ed.  '2  Id 

Id.  674,  v\31,  4th  cd.  »  1  u.  g,  o^q  (^-^^  13  ^^  ^ill  49 

'  -, R-  «■ «'" •-  \yi7-  608,  ()I35,  4ili  cd.  '  M  R.  S.  338.  (S,  4th  ed. 

Id.  t<78,  ()31,  4ih  cd.  '  ^ 

<-» 
o 


1(1  •         OF  Tin-:  LNDDRsmiUlFK. 

I>e  had.'  In  case  of  a  failure  lo  v\ccA,  by  reason  of  two  or  more  candi- 
dates liavini;  an  e(]ual  number  of  votes,  the  special  election  bball  be 
onlorcil  by  the  board  of  county  canvassers.  In  the  other  cases,  the 
election  shall  be  ordered  by  the  governor,  who  .shall  issue  his  j)rt»cla- 
malion  therefor,-  in  which  he  shall  specify  the  county  where  such 
election  is  to  be  luld ;  the  cause  of  such  election ;  the  name  of  the 
ollicer  in  whose  oHicc  the  vacancy  has  occurred;  the  time  when  his 
oflice  will  expire  and  the  day  on  which  such  election  shall  be  held, 
which  shall  not  be  less  than  twenty  nor  more  than  firty  days  frou)  the 
date  of  the  i)roclamalion.' 

CHAPTEH  III. 

OF  Tlir  UNDER-SIIEUIFF,  DEl'LTIES  AM)  JAILERS. 

5  13.  Kvery  sherilV  shall,  as  soon  as  may  be,  after  he  lakes  upon  him- 
self the  duties  of  his  ollice,  ap[>oint  some  proper  person  under-slu-riir; 
and  as  soon  as  a  vacancy  shall  occur  in  the  olFice  of  under-sheriir,  or 
the  person  so  appointed  becomes  incapable  of  executing  the  duties  of 
the  ollice.  another  person  shall  be  appointed  in  his  place.^  The  sherifl' 
cannot  appoint  more  than  one  under-sherifl'  at  a  time,'  yet  he  may 
appoint  as  many  general  deputies  as  lie  may  think  proper.'  The 
sherifl',  and  the  under-sherilf  may  also,  by  writing,  dei)Ute  persons  to 
do  particular  acts.^  But  they  cannot  dejjute  a  person  to  do  any  of 
those  acts  which  the  sherifl',  or  his  under-sherifl*,  or  a  general  deputy 
is  required  to  do  in  person  ;  as  attending  upon  the  drawing  of  grand 
and  i»etit  juries,  or  attending  upon  the  execution  of  a  criminal ;  for  in 
such  cases  either  the  sherifl',  or  the  under-§herifl',  must  be  present  in 
person.  iVor  can  they  aj>point  one  to  convey  a  prisoner  to  the  state 
prison,  or  to  the  house  of  refuge.  'J'his  can  only  be  done  by  the 
sheriir.  under-sherilF,  or  a  general  or  usual  deputy.'*  Though  thfc 
sheriir  may  appoint  persons  to  do  jiarticular  acts,  he  cannot  appoint 
an  under-sherifl'  or  a  deputy,  t(»  execute  a  j)art  of  the  oiricc.  and  re- 
serve the  residue  of  theduties  to  be  discharged  by  himself*  And  anv 
covenant  in  the  deputy's  bond,  limiting  his  powers  to  the  service  of 
particular  process,  and  the  like,  would  be  void.  But  such  bond  would 
not  be  void  in  tola,  but  only  in  respect  to  such  covenant;  and  if  the 
deputy  should  violate  it,  and  make  an  arrest  in  a  case  prohibited  by  it, 
he  would  neverlhelebs  be  liable  for  sufl'ering  an  escape.'" 

I  1  U  H  •  •■.  .'.    (.1.  ..1 
«  1  R  .« 

» 1  n  s 

*  1  r. 
i., 
»  Alitu,  71. 


10  1-  .;.., 
1  i: 

M    ' 
1  i; 
It 
1  1* 

,■  "  '11 

■  .1. 

•2R   P.  7.19,  <^  12. 
M.l'2i;,vll,-ltl.o<l. 

•'  W;iis  rn. 

•"  1  IJ.i.k.otiShtii(J  H, 

, 

i.  »(i. 

Dl'.PrTIKS   A XI)  J  MI.F.RS.  H 

;3  11.  Tlio  undcr-sficritr  rind  general  (icpiitics  arc  ofl'irers-,  and  are 
within  the  j)rovisions  of  the  statute  relating  to  the  appointment  and 
resignation  of  oflicers,'  and  they  must  possess  the  same  qualifications 
as  the  shcriir  himself.-  They  shall  he  appointed  hy  writing,  under 
the  hand  and  seal  of  the  sherill"  and  such  appointment  shall  be  filed, 
and  recorded  in  the  ofiice  of  the  clerk  of  the  county ;  and  every  such 
iinder-sheriir  or  deputy  shall,  before  he  enters  upon  the  execution  of 
the  duties  of  his  ollice,  take  the  oath  of  olfice  prescribed  bv  the  con- 
stitution. I'ut  the  appointment  of  a  special  deputy,  or  the  dci)ulising 
one  to  do  a  particular  act,  though  such  appointment  or  deputation 
must  be  in  writing,  it  need  not  be  under  seal,  nor  be  filed  with  the 
clerk  of  the  county ;  nor  need  sueh  special  deputy  take  the  oath  of 
ollice.'  The  jailer  is  but  a  servant  of  the  sheriff,  and  is  not  an  officer,* 
and  it  is  not  necessary  therefore,  that  he  should  possess  the  ciualifica- 
tions  required  of  the  sheriff  or  a  deputy  ;  or  that  he  should  be  appointed 
by  writing  ;  or  that  he  should  take  the  oath  of  office.  It  is  usual,  how- 
ever, to  a])point  the  jailer  a  de|nUy  also;  and  in  such  case  his  appoint- 
ment and  bond  to  the  sherilf  include  the  place  of  jailer  as  well  as 
the  office  of  deputy. 

'^13.  The  under-sherin"^  general  deputies,  and  jailers,  hold  their 
respective  appointments  during  the  pleasure  of  the  sherilf;  and  they 
may  be  removed  by  him,  at  any  time,  and  others  appointed  in  their 
stead.®  They  may  resign  to  the  sheriff,  and  such  resignation  need  not 
be  under  seal ;  and  when  tendered,  the  sheriff  is  bound  to  accept  it, 
and  the  office  becomes  vacant.''  And  after  their  resignation,  or  removal 
from  office,  or  after  they  have  vacated  the  office,  in  any  other  manner, 
they  can  do  no  act  to  bind  the  sheriff  or  other  parties.^  After  the 
resignation  of  a  deputy  has  been  accepted  by  the  sheriff,  the  sureties  of 
such  deputy  cease  to  be  liable,  on  his  bond,  for  any  future  acts  or 
omissions  of  such  deputy,  though  he  is  allowed  to  remain  in  the  office 
without  a  new  appointment  or  taking  the  oath  of  office  again ;  and  es- 
pecially, if  in  such  case  the  sheriff  takes  a  new  bond  with  sureties  from 
such  deputy.'  And  the  death,  removal  from  office  or  resignation  of 
the  sheriff,  vacates  the  office  of  all  the  general  and  special  deputies, 
jailers  and  turnkeys, '"  but  it  is  otherwise  with  the  under-sheriff. 

;5  10.  The  powers  and  duties  of  the  under-sheriff  arc,  in  some  re- 
spects, more  extensive  than  those  of  a  deputy.  Thus  he  mav,  like  the 
sheritr,  depute  persons  to  do  particular  acts."     In  the  absence  of  the 

1 11  Barb  91.  M  R.  S.  .370,  <^7] .  ^9  Wond.  258,  Allen  86. 

-  .\nk\  V)2.  1 1.  CUT,  \3l-28,  4ili  cd.  '  n  Barb  91 

'  1  R.  S.  379,  f)74.  1  R.  S.  117,  <^8.  »o  jq  j.^jj^^  .ym 

Id  697,  <jl;n,  4th  ed.'  Id.  328,  ()11.  n  5  Jol.tT  ^7  ' 

*  Impcy  on  shcrilT,  G7.  '11  B.irb.  91.                               ]  R   s    379  (w3 

^^•■»ts40.  Id.  332,^:J6,siib.G,4thed.       Antov^li 


r.>  OF  TiiF.  rM)i:ii.siii:iiii'K. 

slicrifl'.  lie  shall  attend  upon  the  (Irawintj  (»!*  juries  for  llie  courls  of  hia 
county.'  And  he  shall  also  attend,  in  the  absence  of  the  sheiiir,  upon 
the  execuli«»n  «d  a  criuiiual.^  \\  honevor  a  vacancy  shall  occur  in  the 
office  of  sheritr.  the  undcr-sheriH'  of  such  county  .shall,  in  all  things, 
execute  the  olVice  of  sherilV  of  the  county,  until  a  sherilV  shall  he  elected 
or  appointed  and  (lualilied.^  In  all  other  respects,  the  undcr-sherirt*  is 
upon  an  ecjuality  with  the  general  deputies.* 

iS  17.  The  appointment  of  undcr-sherilK  and  general  deputies,  con- 
fers on  them  the  power  to  execute  all  the  ministerial  ilulies,  of  the 
sherifT.  (including  the  executing  a  writ  of  in<piiry,^)  except  attending 
upon  the  execution  of  a  criminal,  or  uj)on  the  drawing  a  grand  or  petit 
jury.  In  these  cases  the  sherilF,  or  the  under-sherilV,  must  attend  in  per- 
son.* But  all  the  acts  of  such  under-sherilV,  (except  while  he  is  executing 
the  duties  of  the  ollice  during  a  vacancy  therein.)  and  of  dei)Ulies,  must 
be  done  by  them,  in  the  name  of  the  sherilV,  their  principal.^  The 
imder-slierifl'  and  deputies  may,  like  the  shcrilT,  complete  the  execution 
of  any  process,  sell  goods  or  lands  on  execution,  and  execute  a  deed 
therefor,  though  the  term  of  office  of  tlie  sherili'  has  expired,  if  they 
have  begun  to  execute  the  same,  by  the  collection  of  money  or  making 
a  levy  pursuant  to  the  direction  thereof,  belore  the  term  of  ollice  of 
the  sherilV  expired.^  l>ut  if  the  under-sherilV,  or  a  deputy  resigns,  or  is 
removed  from  olVjce,  or  removes  iVom  the  county,  or  (h^es  any  other 
act  by  which  his  ollice  is  vacated,  the  execution  of  process  in  his  hands 
must  be  completed  bv  the  sherilV,  or  another  deputy.'  And  if  the 
sherifT  dies,  ov  resigns,  or  is  removed  from  ollice,  or  otherwise  vacates 
it,  before  the  expiration  of  his  term,  the  execution  of  process  in  the 
hands  of  the  sherilV,  or  any  of  his  deputies,  must  be  completed  by  the 
under-sherilV.  Neither  an  under-sherilV,  (except  when  he  discharges 
the  duties  of  the  ollice  during  a  vacancy,  when  the  sherilV  is  hable  on 
his  bond  for  his  acts,'*)  nor  a  deputy,  can  do  any  act  to  alVcci  the  sherifl, 
after  the  relation  between  them  has  ceased." 

3  18.  The  undcr-sherilV,  general  deputies  and  jailers,  give  to  the 
sherilV  such  bond,  in  such  penalty,  and  with  such  sureties,  as  the  sher- 
ilV may  think  proper ;  conditioned  for  the  faithful  discharge  of  their 
respective  duties.     Such  liond  should  be  executed  and   delivere<l  be- 


»  2  R.  S.  41.'..  (>2fl. 

•  Ante.  <>i;j, 

»r.  UVn.l  *Ji:!. 

M  <T,i, '";<',  1th f! 

"  y.Mv  ni 

It  Will.!   -J.'s, 

1   <J    !• 

1 

n  1                    ..; 

t.  M  '  '    1    .  1    .  -.  i 

'•  Aii.M  yi't 

1                  ' 

:•.  <•..«-.  hit. 

7  M;i-s   .'.If. 

«  1  .1              ,  Allen,  77. 

■jit  Wftifl  r^r2 

.\\^|•   V.I'. 

»  w.it*  :K) 

All.-i.  7s 

, 

All.n,  77. 

•2  K   S    J.V.i.  »\71 

•J  JohD.  70. 

M.  Wi,</.'l.'UU 

r.|. 

fu:iM Tiiis  AM)  jAirj:i:s.  i:j 

(ore  sucli  imdcr-.slu'rill'  or  deputy  slioiiM  Ix;  pfniiiitcd  to  perform  nny 
act  under  liis  Mppointineiit.  And  vvli>l('  it  is  the  duly  «d'  the  sherill'  lo 
see  th:it  the  deputy  (hschari^es  his  (hity  prouiplly  and  properly,  ho 
shoidd  avoiil  unnecessarily  intfrl'erini^  with,  or  controlhrii^  hini  in  tho 
jMoper  execution  of  process,  as  he  may  thcreiiy  rcdease  the  deputy  an 
well  as  his  surety  from  all  responsihility.  But  to  exonerate  them  in  such 
case,  the  instructions  (d'the  sherill'must  he  clear  and  explicit;  and  a  com-' 
munication  of  mere  information  and  advice  will  not  have  that  efl'ect. 
To  excuse  the  deputy,  the  instructions  of  the  sherill'  must  be  so  defi- 
nite and  specific  as  to  deprive  him  of  all  discretion  in  the  matter.' 
The  shcrilf  will  not  discharj^e  the  sureties  of  his  deputy  by  ne,i,dect- 
inq  or  delaying  his  removal  at  the  reciuest  of  the  sureties,  not  even 
where  the  deputy  has  become  insolvent,  and  his  removal  is  asked  for 
on  that  ground.-  But  after  a  deputy  has  resigned  his  olficc,  his  bail 
cease  to  be  liable  for  future  acts  done  by  him,  if  he  is  alhjwed  to  act, 
without  a  new  appointment  or  taking  the  oath  of  oJfice  anew,  espe- 
cially if  a  new  bond  has  been  given.^  But  a  bond,  in  proper  form, 
will  he  binding  upon  the  under-sheriff  and  deputy  so  long  as  they 
contin\ic  to  act,  as  such  under-sherill'  or  deputy,  whether  before  or 
after  the  termination  of  the  ollice  of  their  principal ;  and  in  the  case  of 
the  under-shcrilf,  he  and  his  sureties  will  be  liable  on  his  bond  to  the 
sherifl',  for  acts  done  by  him,  when  discharging  the  duties  of  the  of- 
fice, during  a  vacancy  therein.^  As  the  sheriff  is  liable  to  third  par- 
ties, for  any  default  or  misfeasance  of  a  special  de{)Uty  appointed  by 
him,  he  should  require  an  undertaking,  or  indemnity  from  the  person 
for  whose  convenience,  or  at  whose  request,  he  is  ai)|>ointed.' 

^  IJ).  A  deputy  is  liable  criminally,  like  the  sheritf  himself,  and  in 
the  same  cases,  for  any  violation  of  duty  prescribed  by  law ;  for  the 
cfimmission  of  any  act  prohibited ;  for  the  abuse  of  any  process  in 
his  hands ;  for  extortion,  or  the  taking  of  illegal  fees.  He,  as  well 
as  the  sherifl',  is  also  liable  in  an  action  at  the  suit  of  the  party  aggrie- 
ved, for  any  unlawful  interference  with  the  rights  or  property  of 
another;  and  the  action  may  be  maintained  against  such  deputy,  or 
the  sherilV,  or  both,  lint  an  action  cannot  be  maintained  directly 
against  the  deputy,  by  the  party  aggrieved,  for  a  mere  breach  of 
duty  in  his  olfice  ;  as  for  refusing  or  neglecting  to  make  aji  arrest ; 
)ior  for  refusing  to  discharge  one  on  bail ;  nor  for  taking  insufficient 
bail ;  nor  for  an  escape ;  nor  for  neglecting  or  refusing  to  make  a 
levy ;  nor  for  neglect  to  return  process  ;  nor  for  a  false  return  ;*  nor  for 

•  1.")  Wend.  274.  <  1  Tl.  S.  .370,  \\72.  *  Alien,  87. 

"'  a  Cow.  60:^>.  M.  C07,  V)12't,  4th  ctl.  «  8  Cow.  212. 

IMVenrl.  28.  .Ante,  <)4. 

11  Barb. '.tl.     AuteM)ir).  rost,v322. 


14  OK  Tin:  ini)i:r  SHERIFF. 

refusing  to  pay  over  monoy  rocrixnl  on  an  rxcrtiiion.  or  on  tlio  re- 
demption of  lamls  sold,  unless,  in  such  last  case,  ho  has  mwle  himself 
personally  liable  hy  his  clear  and  absolute  ppunise  to  pay.'  If  the 
breach  of  duty  on  the  part  of  the  deputy  is' referable  to  a  breach  of 
the  otlicial  duty  of  the  sherilf,  he.  and  not  the  deputy,  is  liable  to  the 
partv  mjirrieved.'  Hut  the  deputy  is  liable,  in  all  such  cases,  upon  his 
bond  to  the  sherill'.^ 

<3  '20.  The  jailer  is  not  a  deputy.  lie  is  but  the  servant  of  the  sher- 
jfT.  who  is  responsible  for  his  conduct.  He  is  not,  like  a  deputy,  j»ro- 
hibited  from  purchasing  at  a  sale  by  the  sherilU*  If  no  bond  is  taken 
from  him  for  the  proper  discharge  of  his  duties,  he  is,  notwithstanding, 
liable  on  his  implied  undertaking  to  serve  the  sherilV  with  diligence 
and  fidclitv ;  as  where  a  negligent  escaj)e  occurs.*  His  l)usiness  is  to 
keep  safely  all  such  fiersons  as  are  committed  to  his  custody  by  lawful 
warrant;  and  if  he  suffer  any  to  escape,  the  sherifT  shall  answer,  if  it 
be  in  a  civil  case  ;'  but  if  the  person  escaping  be  confined  on  a  crim- 
inal charge,  the  jailer,  and  not  the  sherilV,  is  answerable  ;  for  the  sherilT 
is  liable  to  an  action,  but  not  to  an  indictment,  for  the  default  of  his 
officer  in  suflering  a  voluntary  escape.^ 

*S  "21.  The  sherirt'  may  allow  his  subordinate  officers  such  compen- 
sation as  shall  be  agreed  upon,  either  by  way  of  salary,  or  by  allowing 
them  a  portion  of  the  j^erquisites  to  which  he  is  entitled,  as  the  prin- 
cipal ;  and  he  mav  contract  with  his  under-sherilfand  dejnities  for  the 
discharge  of  the  duties  of  their  several  trusts,  either  for  a  specific 
compensation,  or  for  a  reasonable  prf>i)ortion  of  the  fees  and  emolu- 
ments arising  from  the  performance  of  such  duties;  and  such  agree- 
ment may  be  a  part  of  the  bond  of  such  under-sherilfor  deputy  to  the 
sheriff.'  But  an  a'jreement  of  a  dei)uty  to  allow  his  j)rincipal  a  sum  in 
gross,  not  payable  out  of  the  j)rolits  of  the  office,  and  which,  therefore, 
may  exceed  its  profits,  is  a  violation  of  the  statute  which  prohibits  the 
buying  and  selling  office.  And  so,  where  a  deputy  is  by  law  entitled  to 
certain  fees  in  virtue  of  his  character  merely,  if  he  agrees  to  give  to 
the  officer  a|)i»oiiiting  him  a  portion  thereof,  it  is  a  purchase  of  the  dep- 
utation, and  the  parties  are  guilty  of  a  violation  of  the  statute  against 
buying  and  selling  office."  liut  all  official  acts  done  before  :i  convic- 
tion for  any  olTence  prohibited  by  the  statute,  shall  be  valiil.'" 

5  '2'2.  As  has  been  already  said,  whenever  a  vacancy  shall  occur  in 

•  2  Com.  12«. 


'3 


6  John  1' 


i  1  Wtn.I    17  1. 

•  1  iiin,2i.  '     . 

\V   ..          1.1 

0  I'.iiK.',  f.H. 

0  W.M.I.  17.5. 

'2  U.  .^.  t'.'.tr,,  ^^.V),  6,  7. 

40. 

III.  877,  (>vj.'57,  8,  9,  <ltli  cd, 

n 

I0  2U.  S.  C'.Ki,  <>.37. 

S.  .s.  M,  .J. 

Id.  87y,  <i'i\f,  4Ui  cd. 

1  inn, 'ji 

nr.PUTIKS  AM)  JAILIORS.  15 

tlio  ofllce  ol"  slicrilT  of  any  county,  the  under-slierill  ol  such  county 
shall,  in  all  things,  execute  the  ollice  of  sherilf  of  the  county,  until  u 
sherill' shall  he  elected  or  appointed  and  duly  (lualified  ;'  hut  it  is  other 
wise  with  respect  to  the  general  de|»uties.  Their  powers,  as  such,  cease 
whenever  those  of  their  principal  cease ;  and  all  process  then  in  tho 
hands  of  such  sheriH',  the  execution  of  which  has  been  commenced, 
must  be  comj)leted  by  the  under-sherill".''  In  such  case  too,  the  un- 
der-sheriir  executes  all  new  process,  in  the  same  manner  as  the  late 
shcritr  could  execute  the  same,  until  a  sheriff  is  elected,  or  appointed, 
and  qualified,  when  he  must  deliver  over  the  ollice  to  such  j)erson,  in 
the  manner,  and  within  the  time  prescribed  for  the  delivering  over  by 
the  old  to  the  new  sherift'.'  The  under-sherifl',  while  so  executing  the 
duties  of  the  office,  during  a  vacancy  therein,  may  appoint  general 
and  special  deputies  to  aid  him  in  the  discharge  of  such  duties.  But 
the  general  deputies  of  the  old  sherilf,  who  has  vacated  his  office  by 
death,  resignation,  or  removal  from  ollice,  are  not  authorized  to  dis- 
charge the  duties  of  general  deputies  of  the  under-sherilF  without  a 
new  appointment  by  such  under-sherilf,  buch  appointment  must  be 
in  writing,  under  seal,  and  be  recorded  with  the  countv  clerk,  and  the 
deputy  must  take  the  oath  of  ollice  in  the  same  manner  as  upon  the 
original  appointment  by  the  sheriff.*  Without  such  new  appointment, 
a  de})uty  of  the  old  sherilf  cannot,  as  such,  do  any  act  which  will  be 
valid  as  to  third  persons.  But  when  they  continue  to  act,  with  the 
knowledge  and  assent  of  the  under-sherillj  they  may  be  considered  as 
dejiuties  defaclo  of  such  under-sheriir,  so  as  to  protect  the  rights  of 
third  persons.^  Any  default  or  misfeasance  in  the  olHce  of  such  under- 
sheriff,  in  the  meantime  as  well  as  before,  shall  be  deemed  to  be  a 
breach  of  the  condition  of  the  bond  given  by  the  sheriff  who  ap- 
pointed him,  and  also  a  breach  of  the  condition  of  the  bond  executed 
by  such  under-sheriff  to  the  sheriff  by  whom  he  was  appointed." 

CHAPTER  IV. 

OF  THE  POWERS  AND  DUTIES  OF  SHERIFFS. 

<5  23.  It  shall  be  the  duty  of  the  sherilf  of  every  county,  to  keep  an 
office  in  some  proper  plape,  in  the  city  or  village  in  which  the  county 
courts  are  held,  of  which  he  shall  iilc  a  notice  in  the  ollice  of  the 
clerk  of  the  county.  If  there  be  more  than  one  place  of  holding 
courts,  the  notice  shall  specify  in  which  his  ofHce  will  be  ke}>t,  or  it 

'  1  R.  S.  r.70,  ^71.  3  2  R.  S.  -I.IO,  ^74.  ^  10  raigc,  2.']0. 

M   i".'.t7,  <\V1H,  lib  cd  M.  (183,  i)'M,  4th  cd,  '  I  R.  S.  ;j7'J,  <y-2. 

18  John.  ii'i).  !  1(1 1'aigo,  230.  Id.  Ij'j7,  <)i'2'J,  Hh  cd. 

Ante,  ()17. 


IG  oi'  riii:  powDiis  and 

may  specify  tint  an  ollico  will  lie  kopl  in  all  i^nrU  places,  il"  lie  thinks 
proper.'  Su»h  ollices  shall  be  ke|il  op«Mi  every  tlay  in  the  year,  ex- 
cept Sundays  ami  the  anniversary  of  American  independence,  in  the 
city  of  Ne\v-\ork,  from  nine  o'clock  in  the  forenoon  to  four  o'clock 
in  the  afternoon;  and  in  all  other  jiarls  «»f  the  state,  except  in  Kings 
county,  from  nine  to  twelve  o'clock  in  the  forenoon,  and  from  two  lo 
five  o'clock  in  ihe  afternoon  ;"  and  in  Kin;^s  county,  ex(repl  Sundays  ; 
the  day  appointed  by  the  i,'overnor  as  a  day  of  general  thanksgiving ; 
the  Iwenty-lifth  day  of  December,  conunoidy  culled  ("hristmas-day  ; 
the  fnsl  day  of  January,  and  the  anniversary  of  American  indejiend- 
ence,  iVom  nine  o'clock  in  the  forenoon  to  four  o'clock  in  the  after- 
noon.' liVery  notice  or  other  pa|)er  which  shall  be  re(piired  to  be 
served  on  any  sherill',  may  be  served  by  leavini;  the  same  at  the  ollice 
designated  by  him  in  such  notice,  durinir  the  hours  in  which  it  is  re- 
quired lo  be  kept  open  :  but  if  any  person  belonging  to  such  ollice 
be  therein,  such  notice  or  })aper  shall  be  delivered  to  such  person; 
and  every  such  «rf^rvice  shall  be  deemed  eipiivalent  to  a  personal  ser- 
vice on  such  sherill'.*  If  no  notice  shall  be  liled  by  any  sherilK  with 
the  county  clerk,  as  herein  required,  the  service  of  all  papers  on  such 
sheritfmay  be  made  by  leaving  them  at  the  ollice  of  the  county  clerk, 
with  such  clerk  or  his  deputy  ;  and  the  same  shall  be  deemed  ecpiiva- 
lent  to  a  personal  service  on  such  sherill? 

i5  24.  The  public  ollicers  having,  by  law,  the  care  and  custody  of 
town,  village,  city  or  county  buildings,  are  authorized  to  insure  the 
same  at  the  expense  and  for  the  benelit  of  the  town,  village,  city  or 
county  owning  the  same.*  Under  this  provision,  the  sherilfs  of  the 
difierent  counties  are  authorized  to  insure  the  jails  in  their  respective 
counties,  as  they  are  the  oflicers  having,  by  law,  the  care  and  custody 
of  them.  liut  not  so  with  the  court  houses,  for  the  care  and  custody 
of  them,  in  most  of  the  counties,  belong  by  law  to  the  board  of  su- 
pervisors of  the  resj)eclive  counties.'' 

3  iJ.'i.  I'A'ery  sherilV,  like  the  coroners,  constables  and  marshals  ol  his 
county,  is  a  conservator  of  the  peace  within  his  county,  and  as  such, 
is  bound  to  suppress  an  all'ray,  or  arrest  a  breaker  of  the  |>cuce  in  his 
view,  and  bring  him  before  a  magistrate."  And  so,  it  is  his  duty,  when 
re<iuired,  lo  execute  all  criminal  process,  judgments  and  orders  of 
every  court  or  ofllccr  having  criminal  jurisdiction  in  this  stale,  inclu- 
ding the  process  of  courts  of  oyer  ami  terminer  and  jail  delivery  of 

ton    s    .v-.    .".-.  «.'i!    s:   •.,-.    ,-.,-,  «1  U.  S.nsa,v)40, 41110(1. 

I  .••!.  Laws  1.S17,  rli.  '2'Ji,  <)l. 


a  •; 


7 1  Jt.  S,  act',,  \y2. 


I  1.  lU.  i'lo,  \)kii,  iili  vil  M.  'wo,  v/J,  -Uli  cd. 

'2  1  l.«<l,  »aWcnd.  •Itt4. 

L^wa  It^i,  '.L.  113,  <)l. 


DUTIICS  OF  SIIEllIFFS.  17 

other  counties,  when  issued  to  his  own  county.'  lie  is  also  retjuireJ 
to  serve  the  subj)a^nas  of  district  attorneys  of  other  counties,  upon 
witnesses  in  his  own  county.'*  The  sheriff  is  also  the  keeper  of  the 
jails  in  his  own  county,  except  in  New- York,  where  he  is  only  the 
keeper  of  the  prison  for  the  confinement  of  persons  conimitted  on  civil 
process  ;^  and  in  Onondaga  county,  where  the  keeper  of  the  peniten- 
tiary is  the  county  jailer  ;^  and  in  Albany  county,  where  persons  sen- 
tenced to-confinement  at  hard  labor,  or  to  solitary  confinement,  except 
in  cases  of  felony,  are  to  be  sent  to  the  penitentiary  of  such  county.^ 
And  all  sherilTs,  jailers  and  constables,  are  required  to  execute  every 
precept  issued  by  the  president  of  any  court  martial  for  compelling 
the  attendance  of  witnesses,  or  to  be  sworn  and  testify,  and  to  preserve 
order.' 

§  2G.  In  civil  matters,  the  sheriff  is  the  immediate  officer  of  every 
court  of  record  in  the  states  including  the  surrogate's  court,^  to  whom 
all  writs  and  process  are  regularly  directed,  and  he  is  bound  to  exe- 
cute the  same.  He  is  to  serve  the  writ  or  order  for  arrest,  and  take  bail, 
summon  the  jury,  and  through  him  the  court  enforces  obedience  to  its 
orders  and  punishes  for  contempts ;  and  when  a  cause  is  determined, 
he  sees  that  the  judgment  of  the  court  is  carried  into  effect."*  He  may 
hold  courts  to  execute  writs  of  inquiry,  and  such  special  writs  as  may 
he  directed  to  him,  pursuant  to  any  statute,  and  to  inquire  into  any 
claim  of  property  seized  or  levied  on  by  him ;  but  he  is  not  authorized 
to  hold  any  other  court  for  any  purpose  whatever.' 

§  27.  The  sheriff  is  authorized  to  administer  an  oath  to  one  who 
claims  exemption  from  arrest  on  the  ground  that  he  is  a  witness  in  a 
cause;'"  also  to  appraisers  who  appraise  the  property  of  an  abscond- 
ing, non-resident,  or  concealed  debtor,  and  to  jurors  and  witnesses  on 
the  execution  of  writs  of  inquiry ;  to  the  jury  in  the  case  of  the  ap- 
praisal of  a  homestead,"  and  to  any  bail  or  the  sureties  to  any  bond 
that  he  is  authorized  or  required  by  law  to  take  or  approve.'* 

CHAPTER  V. 

THEIR  POWERS  AND  DUTIES  IN  SERVING  PROCESS. 

^  28.  Every  sheriff  or  other  otEcer,  to  whom  any  process  shall  be 
delivered  for  service,  shall  execute  the  same  according  to  the  com- 

»  2  R.  S.  206,  ^43.  s  Laws  1847,  ch.  183,  ^1.  lo  2  R.  S.  402,  ^55. 

Id.  380,  ()27,  4th  ed.  e  Laws  1854,  p.  1061,  ^4.  Id.  648,  ^68,  4th  ed. 

2  2  R.  S.  913,  <^67. 4th  ed.  7  ^  r  g  003,  ()9.  u  2  R.  S.  615,  ^28  4th  ed 

Laws  1836,  ch.  506,  f)4.            I.l.  422,  <J23,  4th  ed.  Laws  1860,  ch.  260,  <i3 

>  2  R.  S.  428,  ()12.  8  Allen,  31.  12  2  R.  S.  652  <i9 

Id.  672,  <)12.  4th  cd.  »  1  R.  S.  286,  f;58.  Id.  783,  <i9,  4Ui  ed. 
♦  Laws  1861,  ch.  32,  ^1.             Id.  473,  (;47,  4th  ed. 


18  TiiHiR  1'(>\vi:rs  and  i)rTii:s 

inand  thereof,  and  shall  make  chie  return  of  his  proccedinjis  thereon, 
when  the  same  is  reciuired,  or  is  necessary  :  which  roturn  shall  be 
Ric^ncd  l)y  hinj.  And  for  any  violation  of  this  provision,  such  sherillor 
other  otlirer,  shall  he  liable  to  an  action,  at  the  suit  of  any  jiartv  ag- 
grieved, for  the  damages  sustained  liy  him,  in  addition  to  any  other 
fine,  punishment  or  |)roceedin2;  ^vhich  may  be  authorized  by  law.' 

;5  -!».  When  process  of  any  description  shall  be  delivered  to  a  sher- 
iff to  be  executed,  he  shall  give  to  the  person  delivering  the  same,  if 
required  by  him.  and  on  the  payment  of  the  fee  allowed  by  law,  a 
note  in  writing,  signed  by  such  shcrilV,  specifying  the  names  of  the 
parties  in  such  process,  the  general  nature  thereof,  and  the  day  of  re- 
ceiving the  same.*  And  he  and  every  other  olbcer  serving  process, 
shall,  upon  the  request  of  the  party  served,  and  without  charging  or 
receiving  any  compensation  therefor,  deliver  to  such  party,  a  copy 
thereof.'  And  any  otlicer  or  other  person,  refusing  to  deliver  a  copy 
of  any  order,  warrant,  process  or  other  authority,  by  which  he  shall 
detain  any  person,  to  any  one  who  shall  demand  such  copy  and  ten- 
der the  fees  therefor,  shall  forfeit  two  hundred  dollars  to  the  person  so 
detained.^ 

*3  HO.  If  any  sheriff,  or  other  officer,  or  any  person  pretending  to  be 
an  officer,  shall,  under  the  pretence  or  color  of  any  process  or  other 
legal  authority,  arrest  any  person,  or  detain  him  against  his  will,  or 
seize  or  levy  upon  any  property,  or  dispossess  any  one  of  any  lands  or 
tenements  without  due  and  legal  process,  or  other  lawful  authority 
therefor,  he  shall,  upon  conviction,  be  adjudged  guilty  of  a  mi.><demeanor,* 
and  shall  be  punished  by  imprisonment  in  a  county  jail  not  exceeding 
one  year,  or  by  fine  not  exceeding  two  hundred  and  fifty  dollars,  or 
bv  both  such  fine  and  im]»risonment :"  and  the  court  may  sentence 
such  person  to  imprisonment  in  a  solitary  cell  in  such  jail,  if  any  such 
be  erected;  but  such  imprisonment  shall  not  exceed  liiirty  days  in  the 
whole.' 

5  31.  Process  may  be  served,  and  an  arrest  may  be  made,  in  a  cri- 
minal or  civil  cause,  action  or  proceeding,  at  any  time  during  the  day 
or  night."  No  search  warrant  however,  can  be  executed  at  night,  but 
it  must  be  executed  in  the  day  time  ;  that  is,  between  sunrise  and  sunset, 
unless  the  warrant  expressly  authorize  the  execution  of  the  same  during 
Ihe  night  lime,  whirh  it  may  do  in  the  case  of  slok-n  or  endjezzled 
property.* 

'  2  R.  .'<.  HO,  <,77.  •  i:  K   S  .-.T:'.,  vTL'.  t  2  R.  S.  Glt7,  <^tl. 

M  CK-I  </.»7,  4tJi  fl.  M   wio,  (/s,  Ith  od.  M  K^l,  (^60,  .Uli  od. 

OkIi-,  IMt.  r.  Hill,  &61!  s  2  It  K.  O'.-j.  (,11.  «  '.)  (.'ok.-,  0(5. 
»  2  R  H.  440,  (f,(}                        M   ><74,  ()11,  4tli  cd.  1  n."k.  117. 

M.  CH3,  (,Wy,  4tli  <<1.  •  '1  R.  H.  G'.t7,  MO.  Alhii,  IIH. 

»  2  R.  H.  440,  i,ic,.  Id.  b»l,  ^,  4tli  cd  »  2  R  H.  740,  ^20,  7. 

Id.  fM,  (;W;,  4lh  cd.  -  IJ  WJ,  </>3!i,  4,  4tU  cd. 


IN  SERVING  PROCESS.  19 

^  .32.  An  arrest  may  1)C  made  upon  any  day,  including  Sunday,  in 
cases  of  breach  of  llie  peace,  or  apprehended  breach  of  the  peace,  or 
for  the  apprehension  of  persons  charged  with  crimes  and  misdemean- 
ors ;  or  in  case  of  a  violation  of  the  statutes  of  this  state  for  enforcing 
the  observance  of  the  Sabbath,  or  for  the  disturbance  of  religious  meet- 
ings,' or  in  an  action  for  a  ]ienalty  tor  a  violation  of  the  laws  of 
this  state  in  regard  to  the  manufacture  of  salt  ;'^  and  in  such  other  cases 
as  shall  be  specially  authorized  by  law.^  One  may  be  arrested  on  Sunday 
on  an  attachment  for  a  rescue,  or  for  a  constructive  breach  of  the 
peace. ^  And  so  an  attachment  for  a  criminal  contempt  may  be  exe- 
cuted on  Sunday.^  And  any  pri.soner,  in  the  custody  of  an  ollicer,  in 
jail,  or  on  the  limits,  who  shall  escape,  may  be  retaken  upon  Sunday, 
as  well  as  any  other  day,  whether  the  original  arrest  was  in  a  civil  or 
criminal  case.® 

S  33.  But  no  writ,  ja-ocess,  warrant,  order,  judgment  or  decree,  or 
other  proceeding  of  any  court  or  f)llicer  of  justice,  except  in  the  cases 
enumerated  in  the  preceding  section,  shall  be  served  or  executed  on 
Sunday,  (which  in  this  state  is  understood  to  include  the  whole  natu- 
ral day,^)  and  the  service  of  any  such  process  or  proceeding  in  any 
other  case,  on  Sunday,  will  be  utterly  void,  and  will  subject  the  offi- 
cer executing  the  same,  to  damages  at  the  suit  of  the  party  aggrieved." 
Though  a  writ,  tested  or  returnable  on  Sunday,  is  not  void  but  voidable 
only,'  yet  when  returnable  on  Sunday,  it  cannot  be  executed  on  that 
day,  but  must  be  executed  at  the  latest  on  Saturday ;  and  a  return 
even  of  the  process  on  Sunday  will  be  bad.'"  And  where  the  return 
day  of  the  writ  was  Sunday,  and  an  arrest  was  made  on  Monday 
morning,  and  the  detendant  held  until  the  writ  w^as  renewed,  the  arrest 
was  declared  to  be  illegal."  And  if  one  is  arrested  on  Sunday  on 
criminal  process,  and  is  detained  until  Monday,  and  then  arrested  on 
civil  process,  the  arrest  will  be  void  and  the  prisoner  be  discharged.*^ 
A  warrant  for  the  arrest  of  the  putative  father  of  a  bastard,  is  not 
such  criminal  process  as  will  authorize  its  serv'ice  on  Sunday ;  and  so 
of  a  warrant  for  the  violation  of  a  city  ordinance.'^  Nor  can  one 
be  arrested  on  Sunday,  tor  the  non-payment  of  a  penalty  upon  a  con- 
viction under  a  penal  statute,  except  in  the  cases  provided  by  law ; 
nor  on  an  attachment  for  the  non-payment  of  an  award,  or  for  the 
non-payment  of  costs.    And  if  in  attempting  to  make  an  arrest  on  Sun- 

»  1  R.  S.  G75,  ^69.  6  Gr.i.  Pmc.  149.  s  22  Wend.  G48. 

2  R.  S.  m,  ()(35,  4th  cd.  Sow.  117,  119.  lo  Sew.  119. 

a  1  R.  S.  278,  ()164.  ^  1  Cow.  Tr.  543.  >i  2  H.  Black.  29. 

Id.  554.  ()225.  4th  ed.  »  1  R.  S.  G75,  <jG9.  12  s  B.ini.  &  Cress.  769. 

3  1  R.  S.  G7o,  <i69.  2  R.  S.  83,  (>65,  4th  ed.        i3  14  Barb.  425. 

2  R.  S.  83,  ^65,  4th  cd.  3  John.  257.  12  Id.  178. 

*  Allen,  101.  15     "     179. 

s  Sew.  117.  20    "     140. 


20  THFJR  POWERS  AND  DUTIES 

day.  in  a  case  not  authorized  by  law,  the  ofllcer  be  killed,  it  would 
seem  that  such  killing  would  not  be  murder.'  Hut  though  one  cannot  be 
arrested  on  civil  proces.s  on  Sunday,  in  the  first  instance,  yet  if  the  de- 
fendant escape  after  a  j)rc)jH^r  arrest,  he  may  be  retaken  on  Sunday  by 
his  bail,  or  by  any  person  thereto  duly  authorized  by  them,  or  by  the 
officer  from  whom  he  escaj^d.' 

5  -Tl.  Whenever  an  election  .shall  be  held  in  any  city  or  town,  pur- 
suant to  the  laws  of  this  state,  for  other  than  militia  officers,  no  decla- 
ration by  which  a  suit  shall  be  commenced,  or  any  civil  process,  or 
proceeiling  in  the  nature  of  civil  process,  shall  be  served  on  any  elec- 
tor entitled  to  vote  in  such  city  or  town  on  the  day  of  such  election.* 
These  provisions  of  the  statute  are  held  to  apply  only  to  process  served 
7ipon  the  defendant,  and  not  to  an  execution  against  his  property.* 
With  these  exceptions,  process  may  be  served  in  civil  as  well  as  crim- 
inal cases,  on  any  day  and  at  any  time  of  the  day  or  night. 

§  35.  Though  the  sherifl'  is  required  to  execute  process,  and  make 
return  according  to  the  command  thereof,  yet  he  will  be  excused 
from  so  doing,  where  an  injunction  shall  have  issued  to  restrain  the  pro- 
ceedings ;  or  an  order  shall  have  been  granted,  by  the  court,  or  proper 
officer,  for  the  like  purpose  ;  or  where  a  writ  of  error  is  brought,  if 
it  be  in  a  criminal  case,  or  an  appeal,  if  in  a  civil  action,  or  proceeding. 
In  general,  the  sherilfis  not  bound  to  regard  or  notice  any  such  injunc- 
tion, order,  writ  of  error  or  appeal,  until  it  shall  have  been  served  upon 
him,  but  when  an  order  to  stay  proceedings  or  an  injunction  duly 
granted,  is  served  upon  him,  he  is  bound  to  obey  its  commands ;  and 
when  a  writ  of  error,  or  an  appeal  is  brought,  and  notice  thereof, 
together  with  notice  that  the  proper  security  has  been  filed,  has  been 
served  upon  him,  it  is  his  duty  to  suspend  further  proceedings  until  a 
decision  is  had  upon  such  writ  of  error  or  aj>peal.  The  granting  and 
service  of  an  injunction  or  order,  or  the  bringing  a  writ  of  error  or 
appeal,  and  notice  thereof  does  not  annul  or  undo  anything  that  has 
been  done  by  the  sheriff,  in  the  due  execution  of  the  process.  If  he 
has,  before  such  service,  arrested  one,  or  seized  his  goods,  he  is  not  to 
release  either,  but  is  to  retain  the  prisoner,  or  the  proi)erty,  as  if  no 
such  stay  had  been  granted.  And  when  he  has  levied  on,  or  attached 
property,  and  is  stayed  by  an  order,  he  may  still  go  on  and  make 
his  inventory,  and  take  possession  of  the  property,  but  he  cannot  sell 
until  the  order  or  injunction  is  vacated  or  dissolved. 

5  30.  The  duties  and  liabilities  of  the  sherifl',  upon  the  service  of 
process,  are  in  many  cases  quite  onerous.     Thus,  though  he  will  be  ex- 

'  Allen,  101.  »  1  R.  8.  887,  ^2,  4th  od.         ♦  20  Wend.  681. 

•  Gra  I'Tur.  149.  L.iw«  1M7.  ch.  240,  ^2. 

8cw.  117,  irj.  1  U.  8,  .".4-.  ^10. 

Id.  C4t»,  V-l,4tb  cd. 


IN  SERVIN(]  PROCESS.  21 

cused  if  he  is  unable  to  arrest  one  on  mesne  process ;  or  if,  after 
arrest,  and  before  he  is  coinniitted  to  jail,  he  escape  or  rescue  himself, 
or  is  rescued  by  others;  or  if,  after  a  levy,  goods  are  rescued  ;'  yet  if  a 
defendant  in  a  civil  action  escape  through  his  negligence,  whether  he  be 
arrested  on  mesne  or  on  final  process  ;  or  if  he  escape  from  jail,  or  is  res- 
cued after  he  is  committed  to  jail,  whether  on  mesne  or  final  process,  un- 
less by  reason  of  fire  in  the  jail,  the  act  of  God,  or  of  the  j)ubiic  and  for- 
eign enemies,  he  will  be  liable  therefor.  But  ample  authority  is  conferred 
upon  him  to  execute  all  such  process,  and  to  retain  one  arrested.  Thus  it 
is  provided  that  whenever  a  sherifil'or  other  public  officer,  authorized 
to  execute  any  process  delivered  to  him,  shall  find,  or  shall  have  reason 
to  apprehend,  that  resistance  will  be  made  to  the  execution  of  such 
process,  he  shall  be  authorized  to  command  every  male  inhabitant  of 
his  county,  or  as  many  as  he  shall  think  proper,  and  with  such  arms  as 
he  shall  direct,  and  every  military  company  or  companies  in  his  county, 
armed  and  equipped,  to  assist  him  in  overcoming  such  resistance,  and, 
if  necessary,  in  seizing,  arresting  and  confining  the  resisters,  their  aiders 
and  abettors,  to  be  dealt  with  according  to  law.'^  It  is  also  provided 
that  the  officer  so  resisted  shall  certify  to  the  court  from  which  such 
process  issued,  the  names  of  the  resisters,  their  aiders  and  abettors,  to 
the  end  that  they  may  be  proceeded  against  for  contempt  of  such 
court.'  Every  person  who  shall  resist,  or  enter  into  combination 
with  any  person  or  persons,  to  resist  the  execution  of  process, 
shall  be  guilty  of  a  misdemeanor,  and  be  punished  by  imprisonment  in 
the  county  jail  for  a  term  not  exceeding  one  year,  or  by  a  fine  not  ex- 
ceeding one  thousand  dollars,  or  by  both  such  fine  and  imprisonment, 
in  the  discretion  of  the  court.*  The  officer  should  not  raise  the  power 
of  the  county  until  resistance  is  first  shown ;  but  when  he  does,  he  is 
the  judge  of  the  requisite  force.  The  sheriff  is  not  bound  to  compen- 
sate the  persons  so  required  to  assist,  and  if  he  makes  any  payment  to 
them,  it  will  be  a  gratuity  on  his  part,  and  the  county  will  not  be  liable 
to  refund  the  same  to  him  ;*  though  it  is  usual  and  proper  for  the 
county  to  compensate  the  persons  so  aiding.  Every  person  commanded 
by  the  sheriff  or  other  officer,  to  assist  hirn  in  the  execution  of  process 
as  aforesaid,  who  shall  refuse,  or  without  lawful  cause,  neglect  to  obey 
such  command,  shall  be  deemed  guilty  of  a  misdemeanor  and  subject 
to  fine  and  imprisonment.'  Whenever  a  sheriff  or  constable  has  power 
to  execute  process  in  a  particular  manner,  his  authority  is  a  justifica- 
tion to  himself  and  to  all  who  come  to  his  aid  ;  but  if  his  authority  is  not 

>  12  John.  40.3.                         s  2  R.  S.  441,  (;80.  <  2  R.  S.  879,  (;46,  4th  ed. 

16  Wend.  350.                          Id.  684,  (^99.  4th  ed.  Laws  1845,  Ch.  ^C9,  17. 

5  Deu.  586.                               10  John.  86.  s  Wat.  60. 

>  2  R.  S.  441,  ^81.  «  2  R.  S.  441,  ^82. 

Id.  684,  ^100.  Id.  684,  <il01. 


22  THKIU  I'oWl'.liS  AND  DUTIFS,  .Vc. 

sulTirient  to  justify  him,  neither  can  it  justify  those  who  aid  him,  for  lie 
has  no  j>ower  to  command  others  to  do  an  unhiwful  act,  ami  they  are 
only  hound  tt)ol)ey  when  his  commands  are  lawful.  And  there  is  no 
distinction  hetween  aiding  in  the  original  act.  which  was  itself  unlawlul, 
and  in  aidinc  the  olVicer  in  overcoming  resistance  to  such  unlawful  act. 
Hut  if  a  stranger  comes  to  the  aid  of  the  ofhccr  in  executing  legal  . 
process,  though  the  ollicer  hy  reason  of  some  subse<|uent  impro|)er  act, 
becomes  a  tresj)asser  ah  initio,  the  stranger  does  not  thereby  become  a 
trespasser.' 

^  37.  In  case  it  shall  aj>pear  to  the  governor,  that  the  power  of  any 
county  will  not  he  sulllcient  to  enable  the  sherilf  thereof  to  execute 
process  delivered  to  him,  he  shall,  on  the  aj)i>lication  of  such  sheriff, 
order  such  military  force  from  any  other  county  or  counties  of  this 
state,  as  shall  be  necessary.'^  And  whenever  the  governor  shall  be 
satisfied  that  the  execution  of  civil  or  criminal  process  has  been  forci- 
bly resisted  in  any  county  or  counties  of  the  state,  by  bodies  of  men, 
or  that  combinations  to  resist  the  execution  of  such  process  by  force, 
exist  in  any  such  county  or  counties,  and  that  the  power  of  such 
county  or  counties  has  been  exerted,  and  is  not  sullicient  to  enable  the 
olhcer  having  such  process  to  execute  the  same,  he  may,  on  the  appli- 
cation of  such  officer,  or  of  the  district  attorney,  or  county  judge,  by 
proclamation  to  he  published  in  the  stale  paj>er  and  in  such  other  i>apers 
as  he  shall  direct,  declare  such  county  or  counties  to  be  in  a  state  of 
insurrection,  and  may  order  into  the  service  of  the  state  such  number 
and  descrij)tion  of  volunteer  or  uniform  conijianies  or  other  militia  of 
this  state  as  he  shall  deem  necessary,  to  serve  for  such  term  as  he  shall 
direct,  and  under  the  command  of  such  officer  or  officers  as  he  shall 
think  proper  :  and  the  governor  may,  w  hen  he  shall  think  proper, 
revoke  or  declare  that  such  |)roclamation  shall  cease  at  such  time  and  in 
such  manner  as  he  shall  direct.^  Any  person  who  shall,  after  the  publica- 
tion of  such  j)roclamation,  resist  or  assist  in  resisting,  the  execution  of  any 
process  in  any  such  county,  so  declared  to  be  in  a  state  of  insurrection, 
or  who  shall  aid  or  attempt  the  rescue  or  escape  of  any  prisoner  from 
lawful  custody  or  confinement,  or  who  shall  resist,  or  aid,  or  assist  in 
resisting  any  force  onlered  out  by  the  governor  to  fpiell  or  suppress  any 
such  insurrccticjn,  shall  upon  conviction  be  adjudged  guilty  of  a  felony 
and  punished  by  imprisonment  in  the  state  prison  for  a  term  not  less  than 
two  years.*  The  expenses  of  such  military  companies  so  ordered  out 
by  the  governor  under  such  proclamation,  shall  be  audited  by  the 
comptroller  and  paid  by  the  treasurer.' 

I  10  Wrn<l.  137.  »  2  n.  H.  ftWi,  <)10.T  4th  od.       »  2  H.  S.  086,  f^lOO,  4th  od. 

»2U.  H.  441.<>H3.  LftWN  lK|r,,  rii.  (VjJ^V.K  L.iw.s  1!<-I6,  Ch.  GO,  v22. 

Id.  686,  ^102, 4lh  cd.  ♦  2  U  S  t.H.',,  <^\().\  .ju,  v<\. 

Law»lH|:,,  cii.  C'.t,  (;m. 


Ol'  Till':  RETIIIN  OI'  I'ROCi:SS.  23 

^  38.  In  case  of  finy  brcadi  of  the  i)eacc,  tumult,  riot  or  resistance 
to  process  of  this  state,  or  ajipreliension  of  iiutnincnt  danger  of  the  same, 
it  shall  be  lawful  for  the  sherilfof  the  county,  or  the  mayor  of  any  city,  to 
call  for  aid  from  any  hriu'ade,  rcc^iment,  battalion  or  company,  and  it 
shall  be  the  duty  (jf  the  commanding  ollicer  thereof  to  whom  such  order 
is  given,  to  order  out,  in  aid  of  the  civil  authorities,  the  military  force  or 
any  part  thereol",  under  his  command.'  And  the  commanding  officer  of 
such  force,  when  so  called  into  service,  shall  provide  the  men  of  his 
command  so  ordered  out,  with  at  least  twenty -four  rounds  of  ball  car- 
tridge and  arms  in  complete  order  for  actual  service.'^  And  such  officer 
shall  be  subject,  as  provided  by  law,  to  the  sheriff  or  pul^lic  oflicer  who 
shall  so  require  his  aid  ;  and  for  refusing  or  neglecting  to  obey  the  order 
of  such  sheriff  or  public  officer,  or  for  interfering,  or  in  any  way  hinder- 
ing or  preventing  the  men  of  his  connnaiid  from  performing  such  duty, 
or  in  any  manner,  by  neglect  or  delay,  preventing  the  due  execution  of 
law,  such  commanding  officer,  and  every  commissioned  officer  under 
his  conmiand  so  offending,  shall  be  liable  to  a  fine  of  not  less  than  one 
hundred  nor  more  than  five  hundred  dollars,  and  imprisonment  in  the 
county  jail  not  exceeding  six  months.^  And  in  addition  thereto,  such  offi- 
cer shall  be  liable  to  be  tried  by  a  court  martial,  and  sentenced  to  be  cash- 
iered and  incapacitated  forever  after  for  holding  military  commission  in 
this  state.*  And  any  non-commissioned  officer,  musician  or  private  who 
shall  refuse  to  obey  his  commanding  officer  in  such  case,  shall  be  liable  to 
a  fine  of  not  less  than  twenty-five  dollars  nor  more  than  one  hundred  dol- 
lars, and  to  imprisonment  in  the  county  jail  not  exceeding  three  months.^ 

CHAPTER  VI. 

OF  THE  RETCRN  OF  PROCESS. 

(5  39.  Every  sheriff  and  other  officer  must  not  only  execute  the  pro- 
cess delivered  to  him  for  that  purjiose,  but  he  must  also  make  return 
of  his  doings  thereunder,  and  for  any  violation  of  this  provision,  he 
shall  be  liable  to  an  action  at  the  suit  of  any  party  aggrieved,  for  the 
damages  sustained  by  him,  in  addition  to  any  other  fine,  punishment  or 
proceedings,  which  may  be  authorized  by  law.  A  "  return"  to  }»rocess 
is  the  officer's  answer  touching  the  service  or  the  execution  of 
such  process.  It  is  usually  in  the  form  of  a  certificate,  and  is  en- 
dorsed on  the  writ,  process,  or  paper,  and  it  must  be  signed  by  the  offi- 
cer making  the  return.^  The  sheriff  may  make  '*  return''  to  any 
process  or  proceeding,  whether  the  same  was  executed  by  himself  in 

1  L.1WS  1854,  p.  1051,  (u.         *  I<1.  <>U.  6  2  R.  S.  440.  (;77. 

2  Id.  §9.  5  Id.  ^12.  Id.  684,  ()97,  4th  cd. 

3  Id.  vlO.  Sew.  384. 


'24  t)F  Tin:  RKTIIRN  OF  PROCESS. 

person,  or  by  his  deputy ;  or  the  return  may  be  made  by  the  deputy  who 
rendered  the  service.  The  true  course  however  will  be  for  the  party 
making  the  service  to  make  the  return  to  the  process  also.  Rut  if  the 
deputy  who  made  the  service  is  dead,'  or  lias  t^onc  out  of  ollicc,  then 
the  return  must  be  made  by  the  sherilV.  When  a  deputy  makes 
return  to  process  of  the  execution  thereof  by  him,  it  must  be  made  in 
the  name  of  the  sheritf,  his  jirincipal ;  for  a  return  by  a  deputy  is  no 
return  and  is  void.'  A  sherilf  or  deputy  may  make  return  to  process 
after  the  close  of  their  term  of  office,  of  acts  done  by  tliem  when  in 
office,  or  in  the  execution  of  process  completed  after  the  expiration  of 
their  term  of  office,  if  commenced  before.  In  which  case,  they  must 
sign  the  return  as  late  sheriff  and  late  deputy  sheriff.  But  if  such 
deputy  has  been  removed  from  office,  or  has  resigned,  or  otherwise 
vacated  the  office,  he  can  do  no  farther  act  as  de})uty,  whether  it  be 
before  or  after  the  close  of  the  sherifFs  term  of  office.'  In  all  cases 
where  the  process  is  returnable  j)rocess,  that  is,  process  to  which  the 
sheriff  is  authorized  or  required  to  make  return  of  his  doings  thereun- 
der, his  certificate  of  what  he  has  done  in  the  execution  thereof,  is 
sufficient,  except  on  the  service  of  a  citation  from  a  surrogate's  court  to 
take  proof  of  a  will  ;*  the  return  to  a  writ  of  habeas  cor])us,  where  the 
party  is  incapable  of  being  brought  up  by  reason  of  sickness  ;*  a  return 
to  a  summons  of  the  manner  of  service  thereof  upon  a  concealed  defend- 
ant ;'  or  of  a  precept  for  a  jury  for  assessing  damages  on  taking  land 
for  a  plank  road.^  In  these  cases,  the  return  of  the  officer  must  be 
upon  oath.  Though  the  return  should  be  endorsed  upon  the  writ,  or 
process,  yet  if  such  return  be  long,  it  may  be  made  on  a  schedule  and 
annexed  to  the  writ;  in  which  case  it  must  be  referred  to  by  an  endorse- 
ment ui)on  the  writ,  as  the  return  thereto.'  The  return  must  be  cer- 
tain, and  answer  the  whole  writ,"  and  it  must  not  be  argumentative.  An 
insufficient  return  is  no  return,  and  threfi^re  the  court  will  grant  an 
attachment  against  one  making  an  insufficient  return,'"  and  so  of  an  eva- 
sive return." 

5  10.  After  the  execution  of  the  jirocess,  and  after  having  properly 
endorsed  his  '•return,'  the  officer  executing  the  same  shall  then  return 
or  deliver  such  writ,  process  or  paj)er,  to  the  j)roper  officer,  court  or 
party ;  and  if  he  fails  to  do  so,  he  will  be  liable  to  the  same  penalties 
as  in  case  of  refusal  or  neglect  to  execute  such  process."  It  is  further 
provide<l   by  rule  of  the  court,  that  any  party   entitled  to  have  any 

«  Cow.  &.  HilliiNutcii,  1081.  i'2n.H.r,r,'^,<^49.  »  M.  r,'.». 

« 2  CiU  01.  F.l   wij,  c^r,.5,  4tli  o<l.  '»  1.1  70. 

Col,  &,  r.%1  361.  «  L.iwH  ]hr,::,  ci,.  '.(75,  ^1.  "  111  John.  328. 

•  'J  Wcn.l   'J'/).  1  1  K   H.  1  KU  <)hl,  4th  ed.  '»  2  K.  H.  4 10,  C;77. 

Anto  </>U),  17.  L.vvH  IKl'j,  Cb.  260,  617.          Id.  Oh-J,  </.)7. 

«  2  R  a  2»!t,  </>3,  4th  wl.  •  Wat.   Cfci.                                   6  UUl,  662. 

LawB  1837,  CL.  iW,  </). 


or  Tin:  ri:ti:rn  of  process.  25 

such  process  or  paper  relurned.  may,  at  any  time  after  the  day  when 
it  is  the  duty  of  the  sheritf  or  other  tdhccr  to  return,  (hdiver  or  file 
any  process,  undertaking,  order  or  other  paper,  by  the  provisif)ns  <jf 
the  code  of  procedure,  serve  on  the  oHir.er  a  notice  to  return,  dehver 
or  file  such  process,  underlakinif,  order  or  other  paper,  as  the  case 
may  be,  within  ten  davs,  or  show  cause,  at  a  special  term  to  be  des- 
ii^nated  in  said  notice,  why  an  attachment  should  not  issue  OL'ainst 
him.'  And  on  the  return  ol  any  such  attachment,  the  court  may  im- 
pose a  fine  upon  the  officer,  or  commit  him  to  prison,  or  both,  as  the 
case  may  reriuire.'*  And  althoui,Mi  an  action  aL'ainst  the  officer  for 
not  returning  the  writ  may  be  barred  by  the  statute  of  limitations,  he 
may  still  be  proceeded  against  by  attachment,  in  order  to  compel  a 
return.^  In  such  a  case,  however,  the  court  did  not  impose  a  fine  upon 
the  officer,  but  discharged  him  on  his  returning  the  writ  and  paying 
the  costs,  as  it  appeared  the  writ  was  delivered  to  a  deputy  twelve 
years  before,  who  had  absconded  and  died  abroad,  and  it  did  not  ap- 
pear what  had  become  of  such  writ.^  Process  may  be  returned  on  the 
morning  of  the  return  day,  altiiough  the  defendant  might  have  been 
arrested  during  the  day,  provided  the  officer  had  used  due  diligence.^ 
Process  cannot  be  returned  on  Sunday ;  nor  should  the  return  be 
dated  on  Sunday;  and  if  the  return  day  of  the  process  is  Sundav,  it 
should  be  executed  and  returned  the  day  previous.® 

i3  41.  If  the  process  be  in  a  criminal  proceeding,  the  writ,  warrant 
or  attachment,  shall  be  returned  by  the  officer,  with  his  return  endorsed, 
to  the  court  or  magistrate  issuing  the  same,  or  to  the  officer  before 
whom  the  party  is  taken  for  examination  or  trial/  But  if  the  person 
is  arrested  in  a  diflerent  county  from  that  in  which  the  warrant  issued, 
and  he  is  let  to  bail  in  such  other  county,  the  officer  holding  the  war- 
rant shall,  after  the  magistrate  so  letting  the  prisoner  to  bail  has  en- 
dorsed his  certificate  thereof  on  such  warrant,  deliver  the  warrant 
and  recognizance  to  the  clerk  of  the  court  at  which  the  prisoner  is  so 
recognized  to  ajipear.''  When  an  arrest  is  made  under  a  bench  war- 
rant, and  the  defendant  is  not  let  to  bail,  the  officer  shall  make  return 
thereon  of  the  arrest,  and  leave  the  *same  with  the  jailer  into  whose 
custody  the  prisoner  is  given  ;  and  so  with  a  mittimus. 

^  42.  In  civil  actions,  process  and  papers  are  generally  to  be  re- 
turned to  the  court,  officer  or  attorney  issuing  them.  When  such 
process  or  paper  expresses  to  whom,  and  when  and  where  the  same 
shall  be  returned,  such  direction  should  be  followed,  unless  it  conflicts 
with  some  statutory  provision,  or  the  rules  and  practice  of  the  court. 

1  Rule  6,  Slip.  Court.              ■!  5  John.  366.  '  2  R  S  708  <)12 

a  2  R.  S.  358,  fylO.                   s  lo  Wend.  367.  Id.  Sn,  <A2  4th  cd. 

Id.  771,  ()-10,  4th  cd.            s  gcw.  119.  8  2  R.  S.  707  p. 

3  4  Hill,  71.                                   Ante,  ^33.  Id.  890.  <\9,  4th  ed. 
5 


if;  OK  Tin:  rkti'iin  of  ruoc^Kss. 

A  siiintnons  and  coniphiint,  with  proof  of  service,  arc  to  be  returned  to 
the  attorney.  And  »>  the  order  for  the  arrest  f)f  a  defemlant  is  to  be 
returned  t<»  the  attorney  within  the  time  fixed  therein  by  the  officer 
grantin«;  the  same;'  but  ibe  adid.ivits  r»n  which  the  arrest  is  made, 
shall  be  fded  by  the  shcrilf.  with  the  clerk  of  the  county  where  the  ac- 
tion is  jiendint^,  within  ten  days  after  the  arrest ;'  and  the  undertaking, 
taken  on  the  arrest,  is  to  be  fded  with  such  clerk  after  the  sureties 
htve  justified.*  AHidavits  and  proceedings  under  the  code,  for  the 
return  of  personal  property,  are  likewise  to  be  filed  with  the  clerk  of 
tlie  court  in  which  the  action  is  j)cndinLj.  within  twenty  days  after  the 
taking  of  the  property.*  And  the  undertakincs.  iiiven  in  such  case, 
shall,  after  the  justification  of  the  sureties,  be  delivered  by  the  sherifl' 
to  the  parties  respectively,  for  whose  benefit  they  were  taken.*  All 
jurv  process  must  be  returned  to  the  court  or  olVicer  before  whom 
such  jury  is  to  appear.  All  subpcrnas  returnable  before  any  court  or 
officer,  shall  be  delivered  to  the  party,  or  his  attorney,  in  whose  be- 
half ihey  were  issued  ;  and  so  of  all  citations  issued  by  any  surrogate. 
Executions  issued  by  a  county  clerk  upon  a  justice's  judgment,  dock- 
eted in  his  office,  must  be  returned  by  the  sheritV  to  the  office  where 
issued  ;  and  executions  on  judgments  in  courts  of  record,  to  the 
office  of  the  clerk  of  the  court  where  the  judi^ment  record  is  filed.' 
If  the  execution  is  issued  u})on  a  judgment  or  decive,  rendered  in  the 
old  supreme  court,  or  court  of  chancery,  pri(jr  to  .July  1.  IN  17,  it  shall 
be  returned  to  the  clerk  of  the  court  of  appeals.^  The  sheritV,  under- 
sheriirand  deputy  slierin's.  may  return  all  process  in  civil  actions  by 
mail,  where  the  ollicer  making  such  return  resides  in  a  dillorent  place 
from  that  in  which  the  clerk's  office  to  which  the  return  is  to  be  made 
is  located,  and  between  which  jtlaccs  there  is  a  regular  communication 
by  mail ;  but  to  render  such  return  valid,  the  ollicer  must  enclose  the 
process  in  an  envelope,  and  properly  direct  it  and  deposite  it  in  the 
post-office  nearest  or  most  convenient  to  the  said  officer,  and  pay  the 
postage  thereon." 

S  l.'L  Until  the  jtrocess  and  return  is  actually  filed  in  the  jiroper 
office,  it  is  subject  to  the  control  of  the  officer  executing  the  i)rocess, 
and  it  may  be  amended  by  him  according  to  the  fact.'  And  when 
the  return  has  been  so  made  ami  filed,  the  court  will,  on  pro|)er  appli- 
cation, allow  an  amendment  by  the  officer;  though  such  amendment 
will  not,  as  a  ^^cneral  thintr.  alVect  the  rights  of  parties  to  the  suit  ac- 
quired, bona  fide,  before  leave  is  granted.  IJut  where  the  sherilT 
ha.s  returned  an  execution  nulla  bona,  after  a  levy  upon  property  which 

I  Code.  (i\M.  '  '-'"l",  ^/123.  B  2  R.  8.  f,84,  ^1)8. 

« Rul.;  W»,  Hup.  Court  «  <'<-!«■,  V-'iO  hawn  IMO,  cli.  226,  $8. 

>  C<idc  <y\'^'>  .luiliriftry  Art,  •  8  Wnid.  447. 

4  Codf,'v-l<  ^**"  '***"<  '^''-  ^*^'  ^>^^-  ^*^"-  *  ^"^  "  Notes,  1096. 


OP  THE  ilEITUKN  OF  PROCESS.  27 

was  after w.ards  fraudulently  eloigned  from  the  county  by  a  third  parly, 
the  court  has,  on  aj>j)lication  of  the  sherifl",  ordered  the  return  to  be 
stricken  out,  and  allowed  him  to  withdraw  the  execution  from  the  files 
in  order  that' he  might  retake  the  properly,  or  bring  an  action  agjiinst 
the  party  who  had  eloigned  the  same.'  The  court  will  also  authr^rize 
amendments  on  the  application  of  parlies  or  purchasers.  A  return 
may  be  amended  although  the  sheriff  has  gone  out  of  office ;  and  if 
he  is  dead,  the  court  w  ill  nnler  it  to  be  amended  by  the  under-sherifT 

^  44.  The  return  <>f  a  ministerial  oflicer,  upon  returnable  process, 
slating  his  oflicial  doings  in  the  execution  of  such  proces.s  is  conclusive 
between  the  jiarties  to  the  suit,  in  the  particular  action  in  which  sucl 
return  is  made.'^  It  is  conclusive  evidence  in  the  action,  of  the  service 
of  process  therein.^  Nor  can  tlie  return  of  due  service  of  process  be 
impeached  in  an  action  by  the  defendant  in  the  process,  against  the 
officer,  for  false  imprisonment;  nor  will  it  make  any  difference  that 
the  oflicer  miikinix  the  return  served  the  process  in  his  own  case,  where 
he  might  lawfully  do  so.''  And  so  a  return  of  non  vsL  inventus  is  con- 
clusive upon  the  surety  in  a  bond  given  in  a  justice's  court,  that  the 
defendant  would  render  himself  or  pay  the  judgment.^ 

^  45.  In  certain  cases  the  return  of  the  oflicer  is  but  prima  facie 
evidence  of  the  matters  it  contains.  It  is  so  in  actions  between 
third  parties,  and  where  the  matters  returned  come  collaterally  in 
issue.®  In  an  action  of  trover  or  trespass  by  an  officer  for  goods  levied 
on  by  him,  or  for  any  injury  thereto,  his  return  \s  prima  facie  evidence 
of  the  levy  and  possession  ;''  and  also  to  identif}-  the  property  levied 
on.  And  if  such  return  is  not  sufficiently  explicit  in  this  respect,  he 
may  amend  it  to  conform  to  the  fact.^  In  an  action  by  tlie  sheriff, 
to  recover  the  purchase  price  of  land  sold  by  him  under  execution, 
his  return  to  the  execution  will  h&  prima  facie  evidence  that  the  de- 
fendant was  the  purchaser.  So  too,  in  an  action  for  his  fees  for  serv- 
ing process,  or  the  like,  his  return  touching  such  service,  will  he  prima 
facie  evidence  that  the  service  was  rendered.'  In  actions  aixainst 
officers,  their  return  \s  prima  facie  evidence  for  them,  of  acts  done  by 
them,  under  the  process,  which  they  are  bound  to  perform.'"  Thus  a 
return  that  most  of  the  money  levied  on,  under  an  execution,  had  been 
applied  in  satisfaction  of  a  previous  lien,  as  for  rent,  W'ill  be  prima 
facie  evidence  of  that  fact."     And  so  of  a  return  to  an  execution  of 

>  Barker  v.  Biuiuger,  3  8  IIow.  353.  '  7  Cow.  310. 

5th  district.                              7  Wend.  398.  8  Wend.  645. 

Wat.  71.                                  Cow.  &  Hills  notes,  1087.       10     "    5G2. 

2  Wat.  72.  <  3  Wond.  2<t2.  s  8  Wend.  447. 

Allen,  57.  «  10  Wend.  525.  s  Cow.  &  lliU's  notes,  1093. 

3  Wend.  202.  «  23  Wend,  289.  J"  5  Den.  6«G. 

10    "    300,  525.  11  Barb.  644,  14  Id.  26.      n  12  John.  379. 


28  ^^i'  Till-:  ri:turn  of  process. 

*•  salisneil.  pursuani  lo  the  special  direclion  uf  the  phiinlilV."  In  this 
case,  the  phiiiitilT  was  iierinitted  lo  show  that  such  return,  in  resjK'cl  to 
such  «liri'ctit>n  l>y  him  was  false.'  A  return  to  an  execution  of  "satis- 
fied" in  part,  is  hut  primu J'tuif  evidence  between  the  jjarties  ;  and  iho 
plaintifVmay  contradict  such  return  when  he  seeks  to  set  oil'  his  judg- 
ment.' And  a  return  of  satisfaction,  not  made  by  the  sherilV  in  the 
course  of  his  «»nicial  duty,  hut  in  viohition  thereof,  will  not  estop  the 
piainlilV:  as  where  the  sherifl" takes  a  note,  instead  of  the  money,  and 
receKes  it  as  payment. and  returns  satisfaction.'  A  return  of  anyotlicia! 
act,  under  the  process,  which  would  he  a  legal  excuse  to  the  ollicer 
for  not  making  complete  service,  or  return,  will  be  prima  facie  evi- 
dence of  such  fact,  in  favor  of  the  ollicer.  So  of  a  return  of  rescue 
from  arrest  on  mrsm-  process  before  conunitment  to  jail ;  or  from  the 
jail,  when  the  party  escapes  or  is  rescued  in  conseciuence  of  a  fire,  or 
the  act  of  God,  or  of  the  jmblic  enemies  :  or  that  goods  and  chattels 
sought  lo  be  levied  on,  were  rescued.  And  so  too,  if  the  writ  was  not 
received  in  lime  to  be  served  before  the  return  day,  or  that  the  de- 
fendant was  too  sick  to  be  removed.  In  actions  against  an  ollicer  for 
a  false  return,  such  return  is  but  pritna  facie  evidence  of  the  fact  staled, 
and  mav  be  contradicted,  even  by  the  sheriff  himself,  as  where  he  brings 
an  action  against  his  deputy  for  money  which  he  has  been  compelled 
to  pay  by  reason  of  such  deputy's  neglect  of  duty.^ 

ViO.  The  sheriff  will  not  be  permitted  to  contradict  the  truth  of 
his  return,  whether  it  was  made  by  himself  or  his  deputy,  unless,  as  has 
been  said,  it  be  in  an  action  brought  by  him  against  his  deputy,  or  his 
sureties,  for  neglect  of  duty  ;^  or  where  he  has  attached  property  and 
inventoried  it  as  the  debtor's,  he  will  be  permitted  to  show,  notwith- 
standing such  return,  that  it  did  not  belong  to  the  debtor."  In  other 
cases  he  will  be  concluded  by  his  return.  Thus,  where  he  returns  an 
execution  "satisfied,"  it  will  be  conclusive  upon  him  that  he  has  re- 
ceived the  money. ^  And  so  his  return  has  been  held  conclusive  upon 
his  surety  in  an  action  upon  his  ollicial  bond  ;"  and  his  endorsement  on 
an  execution  of  the  time  of  its  receipt,  is  deemed  conclusive  evidence 
that  it  was  in  his  hands  at  the  date.'  But  he  is  only  so  concluded  by 
his  return  w  hen  it  is  set  uj»  by  a  party  who  may  claim  something  under 
it.  If  others  rely  upon  it  as  his  admission,  it  is  but  prima  facie  evi- 
dence, and  may  be  explained.'"    When  such  return  is  used  as  evidence 

>  6  W.n.l   'Jn.  »  'i  H<Kl.  468.                          "  Cow.  &  IlillH  notes,  1086. 

«  22  W.-ii.l   410.  6  Wrml.  2(t7.                        »  1  Ilall,  67".t. 

»  1  Cow.  If..  C.w.  iV  Hill'H  notoK,  1087.    'o  23  Wiinl.  289. 

4     "     Wi:j.  •  C.w   &  IlillN  uoWn.  l(Ktl. 

G    "     4r/>.  ">  6  Wind.  207. 

4  Cow.  Sl  llill's  DOtct,  108C.  C  Cow.  406,  3  Scld.  463. 


OF  Ti 1 1 :  ili:ti ■  \i \  ( )i'  ruucioss.  29 

a:,':iinst  him,  the  whole  reUiin,  so  tar  as  the  same  is  a  legal  and  i>r(j|)er 
return,  must  i)e  taken  together.' 

i5  n.  JJut  if  the  process  he  not  nlurmihli-  process,  that  is,  where  the 
oflicer  is  neither  recjuircd  nor  authorized  to  make  return  of  liis  doings 
thereunder ;  no  return  to  any  such  process  will  be  received,  eitlier  for 
the  ollicer  or  for  or  agahist  any  party  to  the  process.  And  so  where  the 
]irocess  is  returnahle  process,  if  the  ollicer  make  return  of  the  perform- 
ance of  acts  beyond  his  duty  under  such  i)rocess,  such  return  will  be 
invalid  as  to  such  parts,  and  will  not  be  evidence  ;  though  the  addition 
of  such  parts  will  not  render  the  whole  return  void,  but  it  will  be  good 
to  the  extent  he  was  authorized  to  make  return.  Though  such  return 
will  be  invalid  as  to  others,  it  may  be  used  as  an  admission  as  against 
the  sheriir  in  a  jiroper  case.  Thus,  the  sherifT  cannot  make  his  return 
evidence  that  he  has  paid  money,  levied  under  an  execution,  to  the 
jilaintiir,  yet  such  return  may  be  used  against  him  in  an  action  for  not 
paying  over  the  money. '^  Nor  can  the  olllcer's  return  be  evidence  of  any 
I'act  whicli  would  go  to  excuse  him  for  not  having  performed  his  duty, 
except,  fis  has  been  seen,  such  facts  be  oflicial  acts  done  in  the  ordinary 
and  usual  course  of  proceedings  under  such  process.  Thus,  a  return 
to  an  execution  that  goods  levied  on  had  been  casually  destroyed  by 
fire  after  the  levy,  will  not  be  competent  evidence  for  the  sherifT  in  an 
action  against  him  for  not  collecting  the  moneys  on  such  execution.' 
When  such  fact  is  a  good  defence,  as  it  will  be,  where  the  sherifl'  has 
taken  the  property  into  his  possession,  and  it  is  destroyed  by  fire,  or 
is  otherwise  lost,  without  fault  on  his  part,  it  must  be  proved  in  the 
usual  mode.  And  so  a  return  of  rescue,  in  the  cases  where  such  fact 
will  not  excuse  the  officer,  as  where  the  prisoner  was  under  arrest  on 
final  process,  or  was  rescued  or  escaped  after  being  committed  to 
jail,  not  in  consequence  of  a  fire,  the  act  of  God,  or  of  the  public  ene- 
mies, it  will  not  be  evidence  for  the  officer.  And  so  of  a  return  of 
sickness,  as  an  excuse  for  not  discharging  his  duty  ;  or  that  he  had  lost 
the  process,  or  the  like,  and  therefore  could  not  return  it.  These  facts 
cannot  be  evidenced  by  the  return,  for  there  is  no  law  authorizing  such 
return.  They  likewise  must  be  proved  in  the  ordinary  way.  And  so 
an  officer's  return  will  not  be  evidence  of  any  act  done  by  him  without 
his  county,  except  in  the  cases  where  he  is  authorized  to  act  without 
his  county.^  Still,  if  the  sherifT  has  an  excuse  for  not  executing  or 
returning  process,  he  should  so  state  it  in  his  return,  whether  it  will  be 
legal  evidence  for  him  or  not. 

I  Cow.  &  Hill's  notes,  228.      3  6  Den.  686. 
a  Cow.  &  Hills  notes,  1083.  <  Cow.  &  Hill's  notes,  1084. 
Allen,  203. 


30  THIilU  Dl  TIES  AS  VEkCK  OFIMCKRS, 

riIAPTi:i{   \  II. 

THKIU   ItUTIES  AS  PEACE  OFFICEIIS,  AND  ON  AUUESTS  FOR  CHIME. 

1.   \vm:\  Tiir.v   m  \y   act   wniiuiT  wnkkwt. 

^  18.  Shorirts  are,  r.r  nffirid,  conscrvalurs  ol  llic  jieace  williin  their 
respective  counties;'  and  it  is  tln-ir  duly,  as  well  as  that  of  all  con- 
stables, coroners,  marshals  and  other  peace  oHicers,  to  prevent  every 
breach  of  the  peace,  and  to  siipj)rcss  everv  unlawful  assembly,  affray 
or  riot  which  may  happen  in  their  presence."''  If  there  be  any  allVay 
in  a  dwelling  house,  the  officer  may  break  the  door  to  preserve  the 
peace.  And  if  a  breach  of  the  peace,  or  any  other  crime  or  misde- 
meanor, is  committed  in  their  jtresence,  (unless  it  be  a  misdemeanor 
unattended  with  violence,  as  perjury  or  libel,  when  a  warrant  will  be 
necessary,)  such  officers  may  arrest  the  olVendcr,  without  warrant,  and 
take  him  before  a  magistrate.  If  the  oil'eiice  be  a  l)reachof  the  peace 
merely,  the  arrest  should  be  made  within  a  reasonable  time  after  the 
alTray.  But  it  is  otherwise  if  a  felony  be  charged,  for  in  such  case  the 
arrest  may  be  made  at  any  time,  whether  there  has  been  time  to  obtain 
a  warrant  or  not.^  And  if  one  engaged  in  an  alfray,  fly  into  a  house, 
if  the  olHcer  follows  in  fresh  pursuit,  he  may  break  ojien  the  doors  to 
arrest  him.  This,  however,  should  only  be  done  in  aggravated  cases, 
and  where  it  is  important  that  the  guilty  j)arty  should  riot  escape.  But 
an  officer  has  no  power  to  arrest  one  who  has  been  engaged  in  an 
aflVay,  out  of  his  view,  after  the  aflray  is  over,  without  warrant,  unless 
a  felony  has  been  committed,  or  is  likely  to  be  done.  It  is  their  duty 
to  preserve  the  peace,  and  not  to  punish  for  a  breach  of  it ;  and  where 
a  breach  of  the  peace  has  been  committed  and  is  over,  the  officer 
should  not  arrest  without  a  warrant  from  a  prujter  ma^'istrate.  But  if 
one  menace  another  n  itii  dralli.  and  comjtlainl  is  made  forthwith  to 
the  officer,  he  may,  in  order  to  avoid  the  |>resent  danger,  and  prevent 
a  probable  felony,  detain  the  person  charged,  until  he  can  conveniently 
bring  him  before  a  magistrate.*  In  supjiressing  affrays,  unlawful  as- 
semblages and  riots,  the  officer  is  authorized  to  demand  the  assistance 
of  all  other  persons,  and  if  any  refuse,  they  may  be  punished  by 
fine  and  imprisonment.*  It  is  further  provided  by  a  recent  statute,  as 
ha.s  been  already  stated,  that  in  case  of  any  breach  of  the  pi'ace,  tumult, 
riot  or  rcsisinncc  to  process  in  this  state,  Qr  api>rchensioii  df  (huiL'er  of 


>  10  John.  87.  •  HxiMt.  on  Crimen,  216,  0,  4.    »  Uunh.  on  Crimes,  286,  0  and 
a  4  Binck.  Com.  2(»2.  720.                                            2'Jl. 

2  IJam.  St  Ad.  '2.W.  2  IlnluH  Cr.  L.  88. 

>  3  Wuod.  384. 


AND  0\  ARRi:.ST.S  Foil  CIUMli.  31 

the  same,  it  shall  l»e  hiwful  for  the  sherifl"  of  any  countv,  or  tho  inavor 
of  any  city,  to  call  for  aid  from  any  bris^arle,  regiment,  battalion  or 
company,  and  it  shall  he  the  duty  of  the  commanding  ofllcer  of  such 
brigafic,  rctriment,  battalion  or  company  to  whom  such  order  is  pivcn, 
to  order  out  in  aid  of  tho  civil  authoiitics,  the  military  force,  or  any 
part  thereof  under  his  command,  in  the  manner  already  pointed  out.' 

(5  49.  Wiicrc  a  felony  is  committed  in  rimr,  that  is,  in  the  presence 
of  any  one,  every  person  so  present,  whether  he  be  a  peace  ofllcer, 
or  a  i)rivate  citizen,  is  required  to  apprehend  the  ofiender.'^  And  if  a 
felony  has  been  committed,  any  person,  whether  he  was  present  or  not, 
may  arrest  the  guilty  party,  without  warrant,  at  any  time,  whether 
there  was  sufficient  time  to  obtain  a  warrant  or  not.^  Even  probable 
suspicion  of  who  the  offender  is  will  justify  the  arrest  by  an  officer. 
And  so  too,  probable  suspicion  will  be  a  justification,  even  if  it  should 
turn  oul  that  no  felony  had,  in  fact,  been  committed,  provided  the 
officer  had  reasonable  grounds  to  suspect  the  partv  apprehended.'' 
And  if  one  charge  another  with  a  felony,  and  desire  a  peace  officer  to 
take  him  into  custody,  such  charge  will  justify  the  officer,  though  no 
felony  has  been  committed.  In  such  case,  the  party  making  the  charge, 
and  not  the  officer,  will  be  liable  for  its  consequences,  if  it  be  false.^ 
The  officer  should  not,  however,  receive  every  idle  rumor,  but  should 
make  such  diligent  inquiry  touching  the  truth  of  the  charge,  as  the 
circumstances  will  admit,  before  he  assumes  to  arrest  one  upon  the 
information  of  another.  Where  persons  are  found  going  about  at 
night  under  suspicious  circumstances,  and  where  there  is  reasonable 
ground  to  suspect  the  commission  of  a  felony,  an  oflicer  will  be  justi- 
fied in  arresting  them,  on  his  own  suspicion,  and  detaining  them  until 
morning  for  examination.  If  there  is  reasonable  and  probable  cause 
for  the  arrest,  and  it  is  not  merely  causeless  suspicion,  the  officer  will 
be  excused  though  no  felony  has  been  committed.'' 

(5  50.  A  prisoner  confined  in  a  county  jail,  or  in  a  state  prison,  upon 
conviction  for  any  criminal  offense,  who  shall  escape  therefrom,  may 
be  retaken  at  any  time  without  a  warrant,  and  imprisoned  again  until 
tried  for  such  escape,  or  until  he  be  discharged  on  failure  to  prosecute 
therefor.'^ 

^  51.  The  sherifV  and  other  officers  resisted  in  the  execution  of  pro- 
cess, whether  civil  or  criminal,  must  arrest  such  resisters,  their  aiders 
and  abettors,  and  carry  them  before  a  justice  of  the  peace.* 

'  Laws  1854,  Art.  2.  s  3  Wi  nd.  3o0.  8  1  Saund   77 

Tit.  6,  ifi.  «  2  llali-'s  Cr.  L.  83.  1  Taunt.  147 

Auto,  ^38.                                1  Ea.st  P.  C.  303.  10  Joliu.  86. 

«  11  John.  48G.                               3  Taunt.  14.  3  Wend  384 

3  3  Wend.  253.  ■?  o  R.  S.  685,  ^20.  2  R.  S.  441.  v\SO. 

<  Barb.  Cr.  L.  543.                      Id.  868,  §20  4th  ed.  Id.  684,  (;0'J,  4tb  cd. 

Laws  1845,  ch.  60,  <)18. 


:v>  TUVAW  DiriEs  AS  ri:\("i-:  officers, 

;5  •'»-•  A  justice  of  tlu*  jicace  may  approliciul.  or  cause  to  be  appre- 
|jenilo«l,  by  nn  olliccr  by  word  only,  aiiy  person  committing  a  felony, 
or  breach  of  tlio  |ieace  in  his  presence'  hi  sujipressintr  riots,  he  inay 
onler  the  ortcnder  into  cust<Hly  of  an  olRcer  for  safe  keepinji,  until  he 
can  be  tried." 

;5  rj.'J.  In  all  .cases,  other  than  those  enumerated,  and  in  the  case 
of  vagrants,^  disiruised  persons,*  and  distiirliers  ol  reliijious  meet- 
ings,* to  be  hereaflernoliced,  a  warrant  will  l)c  necessary  to  author- 
ize the  arrest  of  one  charged  with  any  olVence  other  than  those 
enumerated  in  the  preceding  section,  or  in  the  si)ecial  cases  referred 
to.  Hut  in  s^eneral,  where  one  is  liable  to  be  detained  upon  a  criminal 
charge,  the  court  will  not  incpiirc  into  the  manner  of  his  capture  ; 
whether  it  was  under  a  warrant,  or  without  it ;  whether  the  process 
was  dulv  issued  or  otherwise,  or  whether  it  was  void  or  irregular,  or 
whether  the  arrest  was  made  within  or  without  the  limits  of  the  state, 
I  or  whether  i)y  one  authorized  to  arrest  or  not.*  In  all  these  respects, 
I  there  may  be  irregularities,  yet,  if  there  be  sufficient  ground  lo  charge 

i   the  prisoner  with  the  ollence,  the  court  will  hold  him  to  answer  thereto,^ 
and  leave  the  accused  to  his  remedy  against  the  person  or  ollicer  who 
has  acted  under  void  process,  or  who  has  exceeded  his  powers,  for 
,'    trespass  or  false  imprisonment.     And  if  the  prisoner,  or  others,  resist 
-.    an  arrest  under  such  circumstances,  ii  will  be  justifiable :  and  if  the 
officer  in  the  execution  of  such  void  process  is  killed,  it  will  not  be 
•:    murder,  but  manslauirhter  only,^  unless  the  party  interfering,  wantonly 
strike  with  destructive  weajions,  from  which  malice  may  be  fairly  pre- 
t   sumed,  when   it  will  be  murder."     And  if,  in  attempting  to  execute 
I    void  process,  or  executing  process,  void  or  regular,  in  an  irregular  and 
j    impro|)cr  manner,  the  officer  kills  the  prisoner  inendeavoring  to  arrest 
him.  the  warrant  will  aflord   him  no   protection.     It  is   of  the  highest 
importance  therefore  to  the  officer,  not  only  that  the  process  under  which 
he  arts  is  le-jal  process,  but  that  he  executes  it  in  a  projier  and  legal 
manner. 

'-2.    OF    •llir,    WAIMIANT    or     AltKI'sr. 

^  51.   Warrants  in  criminal  cases,  may  be  issued  as  follows: 

1.   .V  warrant  for  the  arrest  of  one  charged   with  any  ollence,  or  to 

compel  one  to  give  sureties,  to  keep  the  peace  ;'"  to  search  for  stolen 

goods  ."  and  for  the  arrest  of  a  fugitive  from  justice  from  another  state  or 

territorv,"  may  be  issued  by  a  justice  of  the  supreme  court,  judges  of 

•  BUrk.  Com.  lK>'i  '  Allni  118.  ••  2  R.  8.  740,  <>2r). 

«  Barb  Cr  L.  2'M.  *  Alli-n  I'JO.  Id.  m'J,  <;.T2,  Itli  H. 

3  P(^l  <)U*^>.  »  All<-ii  I'JI.  •«  2  U   H  H'.)r),(\n,  Itli  od. 

«  Vml  U07.  '«  2  R.  H,  70t,  <,],  Lawn  IM'.t,  cli.  :{60,  f>l. 

5  V,»l.  If'.C  W.  W7,  <,1 ,  4th  cd. 

•  y  Barn.  &.  Crew.  410 


AND  ON  AllUi:ST.S  FOll  cui.Mi:.  33 

the  superior  court  of  law  ofllic  city  and  county  of  New  York  ;'  ju(lf,'es 
of  the  county  courts,  and  special  county  judges,  mayors,  recorders 
and  aldermen  of  cities;  the  justices  of  the  justice's  court,  ;ind  jiolice 
justices  in  said  city  of  New  York  ;  and  justices  of  the  peace  and 
police  justices  appointed  for  any  city,  or  elected  in  any  town,  and 
l)V  no  otluT  magistrate.*  Hut  a  justice  of  the  peace  has  no  j)Ower 
to  issue  a  warrant  for  the  arrest  of  one  charged  with  having  commit- 
ted a  crime  in  another  county,  unless  the  ofl'ender  he,  at  the  time,  iu 
the  county  where  the  justice  resides.  If  however,  the  olfence  was 
committed  in  the  county  where  llic  justice  resides,  he  may  issue  pro- 
cess of  arrest,  though  the  defendant,  at  the  time,  be  in  another  county.' 
In  most  of  the  cities  and  large  villages,  special  provision  is  made  for 
the  arrest  and  examination  of  persons  charged  with  crime  within  the 
limits  of  such  corporations,  and  generally,  all  inferior  magistrates  therein 
are  prohibited  from  taking  cognizance  of  criminal  complaints.  But 
during  the  absence  of  such  police  magistrates,  or  during  a  vacancy  in 
such  ollice,  justices  of  the  peace  of  such  towns  may  issue  process  of 
arrest  ;  but  in  all  such  cases  it  must  be  made  returnable  before  such 
police  ollicer  or  court. 

2.  Whenever  any  coroner  shall  hold  an  incjuest,  and  the  jury  shall 
find  that  any  murder,  manslaughter  or  assault  has  been  committed,  if 
the  person  charged  with  such  offence  be  not  in  custody,  such  coroner 
shall  have  power  to  issue  process  for  his  apprehension  in  the  same 
manner  as  justices  of  the  peace.'' 

3.  The  governor  may  issue  a  warrant  for  the  arrest  of  a  fugitive 
from  justice  from  another  state  or  territory  found  here,  upon  the  requi- 
sition of  the  governor  or  chief  magistrate  of  the  state  or  territory  from 
which  such  fugitive  fled,  under  the  provisions  of  the  constitution  of  the 
United  States  and  of  the  act  of  congress,  concerning  the  delivering  up  of 
fugitives  from  justice. 

4.  Bench  warrants  for  the  apprehension  of  any  one  against  whom 
an  indictment  shall  have  been  found,  may  be  issued  by  the  court  in 
which  such  indictment  may  have  been  presented,  or  by  any  justice  of 
the  supreme  court,  or  Judge  of  the  county  court  of  the  countv  in 
which  such  indictment  shall  be  found,  either  in  vacation,  or  during 
the  sitting  of  any  such  court ;'  and  by  the  district  attorney  of  the 
county  in  which  the  indictment  was  found.* 

§  55.  The  warrant  for  the  arrest  of  one  charged  with  crime,  should 
show  in  what  county  it  is  issued,  and  the  time  when  issued.  It  may  be 
in  the  name  of  the  magistrate  who  issued  the  same,  or  of  the  people 

'  Samlf.  701.  35  HHi^  1G4.  s  o  R.  S.  728.  <po. 

2  2  R.  S.  70G,  ^1.  «  2  R.  S.  743,  ^6.  Id.  012,  <).57,  4th  ed. 

Id.  889,  ^1,  4th  cd.  Id.  925,  ^6,  4th  ed.  s  Id.  &  Laws  1847,  ch.  338,  <)1. 

6 


;;i  'l'lli:ill  DUTIFS  AS  PEACE  OFFICERS, 

It  imist  l>«*  iinilrr  llie  li.iiul  of  the  inaijistralc,  luit  it  nccil  not  ho  under 
seal.'  It  must  l»c  against  some  particular  ptMson  <>r  persons;  lor  if  it 
be  ijtMieral.  as  to  a|)|irehen(l  all  persons  suspected  of  heing  guilty  of  a 
particular  crime,  without  naming  or  descrihing  anv  imlividual.  il 
will  he  void  for  uncertainty.'  If  known,  the  name  of  the  party 
shoidd  he  acruratelv  stated,  and  it  must  not  be  left  in  i)l;ink.  If  the 
name  stated  in  the  warrant  he  not  the  right  one,  or  if  it  he  erroneous 
in  the  christian  name  only,  or  if  it  be  fictitious  merely,  an  arrest  under 
it  cannot  he  justified,  even  though  the  person  arrested  be  the  one  in- 
tended. Thus,  where  the  warrant  was  issued  against  one  whose  name 
was  unknown,  but  who  was  named  in  the  warrant  "John  Doe,  the 
person  carrying  oH'  the  cannon."  it  was  held  that  it  did  not  authorize 
the  arrest  of  Levi  Mead,  though  he  was  the  person  intended,  and  was, 
when  the  warrant  was  issued,  actually  engaged  in  carrying  off  a  can- 
non. And  so  where  the  christian  name  of  the  party  is  erroneously 
,  inserted  in  the  process,  as  Emeline,  when  it  should  be  Evelina  ;  or 
V  Samuel,  when  it  should  be  Daniel,  though  the  otlicer  should,  under 
\  such  warrant,  arrest  the  true  party,  he  will  be  a  trespasser.  If,  how- 
ever, the  party  is  known  as  well  by  the  one  name  as  by  the  other,  it 
will  be  sutlicient  if  either  is  in  the  warrant,  though  it  be  not  the  right 
one.'  If  the  name  is  unknown,  the  warrant  should  contain  the  best 
description  of  the  party  that  the  nature  of  the  case  will  admit,'  The 
warrant  must  recite  the  accusation.''  Enough  should  ajipear  upon  its 
face  to  inform  the  accused  of  the  specific  oflence  of  which  he  is  ac- 
cused, and  the  |>lace  where  it  was  committed.  Hut  the  warrant  need 
not  contain  the  facts  on  which  the  charge  is  predicated.  It  will  be 
sufficient  in  this  respect,  if  the  nature  of  the  olVence  be  clearly  speci- 
fied.* A  warrant  for  feloniously  taking  personal  property  should  state 
its  value,  and  the  place  from  whence  taken. ^  Hut  if  it  state  a  distinct 
charge  of  larceny,  the  omission  of  the  value  of  the  property  will  not 
render  it  invalid,  but  it  will  i)e  deemeil  to  l)e  petit  larceny  only.'  In  a 
mittimus,  where  a  brief  recital  of  an  oll'ence  is  recpiired,  the  omission 
does  not  render  it  v<jid,  so  as  to  subject  the  jailer  or  the  officer  to  an 
action  ff»r  false  imprisonment,  or  excuse  either  for  allowing  an  escape.* 
» Tlie  warrant  must  not  be  left  in  blank,  to  be  filled  up  by  the  ollicer. 
I  And  if  the  name  of  the  officer  or  party  be  inserted  without  authority, 
i  after  it  is  issued,  the  warrant  will  be  illegal,  and  the  ollicer  inakinir  an 

'  Barb.  Cr.  L.  624.  >  Dart..  Cr  L.  624.  »  1  R.  8.  790,  <>8. 

2  R   H  TCft.  <;3.  6  C.jw.  460.  I.l.  HlMl,  ^  3,  4th  ed. 

I.l  H'M>,  </:.,  Iih  ••.!  1  Wfntl.  120.  •  liarl)  Cr.  L.625. 

« iiarb.  Cr   L  624.  3       "       360.  lHill,:{77. 

4       "       666.  '  2  Hill,  2N1. 

'.t       "       3iy.  »  6  IJftrb.  406. 

♦  Darb.  Cr.  L.  626.  »  21  Wend.  660. 


AM)  IN   AIUIKSTS  FoR  (JlUME.  35 

arrest  iiiider  it,  will  he  ;i  tres|):i.s.ser.'  The  wairaiil  is  made  returnable 
he  fore  the  ollicer  issiiiiii^'  the  same.  P>ut  if  it  he  issued  hy  a  ma;:istrale 
residing  out  of  the  town  or  city  where  the  ofl'ence  shrdl  have  heen 
committed,  and  such  charfre  he  one  which  may  l)e  finally  disposed  of 
hy  a  justice,  it  shall  authorize  the  ollicer  executing  the  same,  to 
carry  the  accused  before  a  magistrate  resident  and  being  in  the  town 
or  citv  where  such  oflence  shall  have  heen  committed.^ 

^  50.  The  warrant  must  at  least,  appear  regular  vjian  its  face.  ^ 
That  is,  it  must  contain  sufficient  upon  its  face  to  show  that  an  oflence 
has  heen  committed,  and  the  nature  thereof;  that  the  magistrate  sign- 
ing it  had  competent  authority  to  issue  warrants  in  similar  cases,  and 
that  it  contains  no  intimation,  in  any  way,  that  there  was  a  defect  of  ' 
jurisdiction  of  the  magistrate  who  issued  it,  either  as  to  place,  subject 
matter,  or  as  to  the  person  of  the  accused.  If  it  is  defective  in  any  ol 
these  respects,  or  if  there  is  the  absence  of  any  fact  necessary  to  give 
the  magistrate  jurisdiction,  and  it  so  appears  on  the  face  of  the  process, 
it  will  be  absolutely  void,  and  all  who  participate  in  the  issuing  or 
execution  thereof,  will  he  trespassers.^  Thus,  if  the  warrant  is  issued 
by  a  justice  of  the  peace,  and  it  should  appear  upon  its  face  that  the 
otFence  was  not  committed  within  his  county,  and  that  the  accused 
was  not  then  in  his  county,  it  would  he  void  for  want  of  jurisdiction 
m  the  justice,  and  the  officer  ought  not  to  execute  it,  unless  the  oflence 
he  a  felony,  when  he  may  justify  an  arrest  without  warrant.  But  if 
the  subject  matter  he  within  the  jurisdiction  of  the  ofiicer,  though  there 
is  a  want  of  jurisdiction  as  to  the  person  or  place,  unless  such  want 
of  jurisdiction  appears  hy  the  process  itself,  it  will  be  good.^  And  it 
is  immaterial  in  such  case  ,  whether  the  court  or  ofiicer  be  one  of  spe- 
cial and  limited,  or  general  jurisdiction  f  or  whether  the  officer  be  one 
(If  jure  or  de  facto  only,  if  he  holds  hy  a  claim  of  right. ^  Nor  is  it 
material  that  the  otlicer  executing  process,  regular  on  its  face,  is  aware 
that  there  was  a  want  of  jurisdiction  in  the  ofiicer  who  issued  the  war-  \ 
rant.  He  must  he  governed,  and  is  protected  by  the  process,  and  if  it 
is  regular  upon  its  face,  he  cannot  he  affected  hy  anything  which  he 
has  heard  or  learned  out  of  it,  as  going  to  impeach  it."  And  if  in  truth, 
the  process  is  void  for  any  such  latent  cause,  and  the  arrest  thereunder 
is  illegal,  the  party  who  procured  the  same  to  be  issued,  and  not  the 
party  who  executes  it,  will  be  liable  therefor.^     If  there  be  any  defects 

1  Barb.  Cr.  L.  628.  «  5  Wend.  170.  s  B.^rl)  Cr  L  533 

Allen,  119.  6      "      368.  13  Wend.  48. 

2  2  R.  S.  891,  ()12,  4th  od.       «  6  Wend.  238.  3  Cow  '^Oe  "09 

Laws  1847,  ch.  466,  <J13.      ^  6  Hill,  440.  "        '  '     ' 

3  16  Barb.  306.    .^  24  Wend.  487. 
*  6  Wend.  240.                             16      "       614. 

13    "     384.  3  Barb.  17. 

21    "     656. 


36  TIIKIII  Dl   riKS  AS  PKACE  OFFICERS, 

in  ihc  process,  if  they  do  not  n-iulcr  it  absolutely  void.  Itiil  vnidablo 
{'  only,  and  may  be  amended,  its  execution  will  not  render  the  oflicer  a 
trespasser  whether  such  defects  np|>ear  upon  the  face  of  the  process 
or  not.  Nor  will  the  fact  that  such  j)idccss  is  voitlaMe,  excuse  tiie 
officer  for  refusing  to  execute  it. 

^5  r»7.  No  |H«rson  can  execute  a  warrant  in  a  criminal  case,  unless  it  is 
directed  and  delivered  to  liim.  lUit  if  it  is  directed  to  the  shcrifl'of  a 
particular  county,  he  may  execute  it  in  ]>erson,  or  by  his  under-sherilT 
or  general  (Feputy  ;  or  he.  or  his  under-shcritV.  may  (lei)Ute  another  by 
writing  to  execute  it.  If  it  is  directed  to  the  coroner  of  the  county,  or 
to  any  constable  or  marshal  of  the  county  generally,  any  one  of  such 
officers  of  such  county  may  execute  if.  IJut  if  it  be  directed  to  any 
constable  or  marshal  of  a  particular  town  or  city,  no  such  ollicer,  not 
residing  in  such  town  or  city  can  execute  it.  And  if  any  officer 
not  so  authorized,  executes  it,  he  will  be  a  trespasser.  If  directed  and 
delivered  to  a  coroner,  (except  when  he  discharcjes  the  duties  of  sheritV, 
when  he  may  ajipoint  deputies  to  assist  him.)  or  to  a  constaide  or  mar- 
shal, such  oflicer  must  execute  it  in  person,  and  not  by  deputy  ;  but  any 
other  person  may  lawfully  assist. 

3  r>f«<.  'I'he  warrant  should  be  executed  forthwith,  accordinc:  to  its 
commands,'  but  it  continues  in  force  during  the  term  of  office  of  the 
magistrate  who  granted  it,  and  an  arrest  may  l)e  made  under  it,  at  anv 
time,  while  it  so  continues  in  force.'* 

,3  iiO.  The  warrant,  when  in  due  lorin.  or  where  its  defects  are  only 
such  as  render  it  voidah/r,  and  not  void,  will  |)rotect  the  officer  in  the 
due  and  legal  execution  tliereof ;  but  not  in  any  abuse  of  the  person 
rights,  or  property  of  the  accused.  And  wlnre  there  is  a  regular  war- 
rant, and  the  officer  has  executed  it  in  due  manner,  yet  if  he  and  the 
comj'lainant  combine  to  extort  money  from  the  prisoner,  such  officer 
will  thereby  lose  the  protection  of  such  warrant,  and  be  liable  for 
false  imprisonment.'  And  where  a  justice  directs  the  execution  of 
process  in  any  other  manner  than  as  prescribed  by  law,  it  will  render 
both  himself  and  the  constable  who  obeys  such  direction,  trespassers. 
Thus  where  a  justice,  by  an  endorsement  upon  a  warrant,  issued  bv 
liim  late  on  Saturday  night,  directed  that  the  accused  should  be  com- 
mitted until  the  following  Monday  to  await  examination,  instead  of 
being  brought  immediately  before  him,  and  the  constable  in  pursuance 
there<»f,  arrested  the  accused  on  Saturday  night  and  committed  him  to 
jail  without  first  bringing  him  before  the  justice,  both  justice  and  con- 
stable were  hehl  to  be  trespa.ssers.* 

"  2  R.  8    700,  ^3.  J  n.ir  fr.  L.  631.  >  8  Wond.  .-ViO. 

Id.  bW,  ^,  4lb  cd.  Allvii,  1 IH.  <  IC  I5arb.  3U3. 

Pe«kc.  N   P.  231 


AND  ON  AKKi:STS  FOR  CIU.Mi:.  37 

3.    or  'iiii;   AICIIKST. 

^  (10.  Certain  persons  are  exempt  from  arrest,  in  civil  actions,  as 
foreign  ministers,  members  of  congress  and  of  llie  legislature,  females 
and  others.  lUit  such  exemption  does  not  extend  to  criminal  matters, 
and  all  persons,  witlK»ut  distinction,  who  are  charged  \viti>  any  crime 
or  ollence  against  the  laws  of  this  state,  are  liable  to  arrest. 

^  Gl.  When  the  party  against  whom  a  warrant  issues,  has  been 
guilty  of  a  felony,  the  officer  is  not  required  to  use  the  same  circum- 
spection in  making  the  arrest  as  in  the  execution  of  a  warrant  against 
one  charged  with  a  minor  oflence  ;  for,  as  has  been  seen,  an  arrest  may 
be  made  in  the  former  case  without  warrant.  But  where  the  oflence 
charged  is  not  a  felony,  and  a  w^arrant  is  necessary  to  authorize  an 
arrest,  in  the  jiarticular  case,  the  ofhcer  cannot  be  too  cautious  in  its 
its  execution.  If,  in  such  case,  as  has  been  already  stated,  the  warrant 
does  not  correctly  name  the  parly,  or  where  his  name  is  unknown,  if 
it  does  not  correctly  describe  him,  by  j)articular  marks,  so  that  he  may 
be  identified,  the  ofllcer  who  executes  such  wai  rant  will  be  a  trespasser, 
though  he  actually  arrests  the  proper  person.'  lie  must  arrest  the 
jierson  named  ;  or  if  not  named,  the  person  corresponding  with  the 
description  in  the  warrant,  and  none  other.  If"  the  oHicer  does  not 
know  the  jtarty,  he  shouKl  be  "informed  so  as  to  be  acquainted  with 
his  jiersonal  appearance,  or  have  some  one  on  whom  he  can  rely,  point 
him  out,  as  he  is  bound  at  his  peril,  to  arrest  the  proper  person.'^ 

^  62.  The  arrest  may  be  made  in  any  place,  for  no  place  af- 
fonls  protection  to  a  criminal,  not  even  the  church  or  the  church- 
yard.^ And  the  warrant  may  be  executed  in  any  part  of  the 
state  by  the  otlicer  or  person  to  whom  it  is  directed  and  delivered, 
whether  it  be  in  his  own  county  or  not.  But  when  such  warrant  is 
issued  l)y  an  assistant  justice  in  New  York,  or  an  alderman  or  justice 
of  the  peace,  it  cannot  be  executed  out  of  the  county  of  which  they 
are  olHcers,  unless  it  is  endorsed  with  the  name  of  a  magistrate  of  the 
county  in  which  the  accused  is  supposed  to  be.  And  any  magistrate 
of  such  county  is  authorized  so  to  endorse  the  same  on  proof  of  the 
handwriting  of  the  officer  issuing  the  original  warrant.*  Such  proof 
may  be  by  the  oath  of  the  person  bringing  such  warrant  to  such  jus- 
tice for  endorsement.  When  the  warrant  is  so  endorsed,  the  person 
bringing  the  warrant,  or  any  other  officer  to  whom  it  may  have  been 
directed,  may  arrest  the  oflender  in  the  county  w  here  the  warrant  was 
endorsed,^  in  the  same  manner  as  if  the  warrant  had  been  issued  by 
an  officer  whose  warrants  run  throughout  the  state. 

'  Ante,  <)bo.  <  2  R.  S.  707  ^5. 

2  Barb.  Cr.  L.  532.  Id.  890,  ^5,  4th  cd, 

3  Cro.  Jac.  321.  5  Id. 


38  TllHlR  DUTIHS  AS  PEACE  OFFICERS, 

o;  03.   When  a  felony  lias  been  commilted,  even  a  i»riv:ite  jierson, 
\viUi«)nl  warrant,  may  break  (»i)en  the  onter  door  of  any  dwellini;  house 
in  which  lUe  felon  may  be.  in  order  to  arrest  him."     And  an  olVicer  , 
may  break  open  any  smh  d<»or  when  he  has  reasonable  and  probable 
cause  of  suspicion  that  a  felony  has  been  committed  ;  or  he  may  do 
so  upon  the  information  of  another  party  in  whose  knowledge  a  rea- 
sonable suspii-i..n  thereof  exists.^     But  before  he  acts  upon  the  infor- 
mation of  another,  he  should  make  diligent  impiiry  into  the  facts.     If 
any  officer  or  j^rivate  jicrson  break  into  the  house  of  a  third  person, 
without  warrant,  to  arrest  a  felon,  it  will  be  at  the  risk  of  finding  him 
there.     But  it  is  otherwise  if  the  officer  acts  honajide  under  a  regular 
warrant.'     Where  there  is  an  actual  affray  in  a  house,  within  view  or 
hearing  of  the  officer,  or  where  those  who  have  maile  an  affray  in  his 
presence,  fly  to  a  house,  and  are  pursued  by  him.  he  may  break  open 
the  doors  to  arrest  the  offenders  or  suppress  the  tumult.*     But  the 
breaking  of  doors  should  be  resorted  to  only  in  cases  of  extreme  neces- 
sity ;  and  in  all  cases,  where  the  party  does  not  know  the  object  of 
the  officer,  there  should  first  be  a  demand  for  admittance,  and  a  state- 
ment of  the  object  of  it,  and  a  refusal,  whether  there  be  a  warrant  or 
not.''     But  where  one  breaks  away  from  an  arrest,  and  shuts  himself 
up  in  a  house,  the  officer,  in  attempting  to  retake  him.  may  break  the 
outer  door  without  making  known  his  business  and  demanding  admit- 
tance, jirovided  that  the  i)ursuit  be  fresh,  and  the  party  consequently 
aware  of  the  object  of  the  officer.* 

(^  04.  Where  there  is  a  warrant  duly  issued,  and  not  void  upon  its 
face,^  doors  may  be  broken  open  in  the  day  or  night,  if  the  offender 
cannot  otherwise  be  taken,  in  cases  of  treason,  felony,  suspicion  of 
felonv,  c»r  actual  breach  of  the  peace,  or  to  search  for  stolen  goods,  if 
the  search  warrant  authorize  a  search  at  night ;'  to  arrest  one  to  compel 
him  to  find  sureties  for  good  behavior ;  or  to  arrest  one  on  process 
for  a  criminal  contemjtt.'  After  indictment,  a  criminal  of  any  degree, 
may  be  arrested  in  any  place,  for  no  house  is  a  sanctuary  to  him." 
And  the  warrant  will  be  a  complete  protection  to  the  officer  to  w  honi 
it  is  directed,  acting  bona  ft d-  under  it,  even  though  the  party  accused 
should  prove  his  innocence."  And  if,  in  the  attempt  to  execute  a 
warrant,  by  breaking  into  the  house  of  a  felon,  alter  demand  for  admit- 
tance, and  refusal,  the  officer  be  killed  by  the  party  resisting,  it  will  be 

I  1  Cl.itly'iiCr.  L.  Wi.  »  n.irt>.  Cr.  L.M%.  Allen,  12C.  ^  Anto,  ^60. 

1  Ilali-'d  Cr.  L.  689.  2  Hftlfi.  Cr.  L.  117.  "  All.ii,  Vl^. 

2  "     VI.  6  Coko.  73.1.  1  Il.nl.'s  Cr.  6b3.  12  M.  117. 
All'-n   12*2,  6.                        MlnlrnCr.  L.  689.                        in Julm.  20.1. 

I.  ','1  s  All<ii,  122  •  n.irh Cr.  L.  e^in. 

I  L6Ry.  M.irl.  Cr  L.  616.  '•  Id.  r,|«, 

«  "  II  ...  .   I  r   L   92  •  10  Wend.  .'JOO.  "  Ulark.  Com.  291. 

Allen,  120.  Cro.  Eliz.  130. 


AND  ON  AlUllvSTS  Foil  CIllMi:.  39 

tnurdor  in  all  concernod.'  And  if,  on  the  oilier  hand,  he  or  those  act- 
inia in  his  aid,  unavoidably  kill  any  of  the  parlies  opposing  him,  it  wi'l 
he  justifiable  homicide."  When  the  officer  has  entered  a  dwellinfj,  and 
the  doors  are  locked  upon  him,  he  may  break  them  open  to  obtain  his 
liberty.  8<j  he  may  break  open  a  house  to  rescue  his  olliccr  urdawfully 
detained  within.^  When  the  officer  is  once  in  the  house  he  niay  break 
*^pen  all  inner  doors,  drawers,  boxes  and  chests  he  may  deem  necessary 
in  the  execution  of  the  warrant.^ 

^  05.  A  regular  officer,  acting  within  his  proper  district,  is  not 
bound  to  exhibit  his  authority  when  he  arrests  an  ofTender,  though  it 
be  demanded  ;  but  a  special  deputy  must  do  so  in  such  case,  and  if  he 
refuses,  the  party  may  resist;'  and  the  warrant,  under  such  circum- 
stances will  be  no  protection  to  such  special  deputy  against  an  action 
for  assault  ami  battery  and  false  imprisonment.  But  whoever  makes 
the  arrest,  whether  a  regular  olFicer,  or  a  special  deputy,  the  party 
arrested  ought  in  some  way  to  be  notified  of  the  officer's  business,  if  he 
does  not  already  know  it.®  And  the  officer,  upon  request,  and  without 
fee,  must  deliver  a  copy  of  the  process  to  the  party,  and  a  refusal  to 
do  so  is  made  a  misdemeanor  in  such  officer.^ 

^  G6.  No  manual  touching  of  the  body  of  the  accused  is  necessary 
to  constitute  an  arrest.  It  is  sufficient  if  he  is  in  the  power  of  the 
officer  and  submits  to  the  arrest.  But  the  mere  giving  charge,  or 
causing  him  voluntarily  to  appear  before  a  magistrate,  without  taking 
him  into  actual  custody,  will  not  amount  to  an  arrest.* 

;3  G7.  The  degree  of  force  the  officer  is  authorized  to  use  in  attempt- 
ing to  arrest  a  prisoner  depends  upon  the  ofTence  charged.  In  case 
of  felony,  or  where  a  dangerous  wound  is  given,  or  the  officer  at- 
tempts to  prevent  a  felony,  whether  with  or  without  a  warrant,  if  the 
party  fly  to  avoid  arrest,  when  about  to  be  made,  or  break  away  after 
it  has  been  made,  and  is  killed  or  wounded  by  the  officer  in  endeavor- 
ing to  prevent  his  escape,  and  without  which  he  could  not  be  taken,  it 
will  be  justifiable  homicide.'  But  in  case  of  aflVays,  assaults,  or  other 
misilemeanor,  where  the  parly  does  not  resist,  but  merely  flies  to  avoid 
arrest,  if  the  officer  kill  him  in  the  pursuit,  the  law  will  not  protect 
him.  So  even  after  arrest  in  such  case,  wiiere  the  party  etfects  his 
escape  without  violence,  if  the  officer  kill  him  in  pursuit,  he  will  be 
guilty  of  manslaughter.'"  In  the  conveyance  of  a  prisoner  the  officer 
should  impose  no  more  force  or  restraint  than  is  necessary  to  prevent 

1  4  Black.  Com.  292.  *  Allen  126.  '  2  R.  S.  446  (376. 

»  2  R.  S.  GGO,  <y2.  1  Hales  Cr.  L.  459.                   Id.  684,  ()96,  4th  cd. 

Id.  846,  (y2,  4th  ed.  s  10  Wend.  514.  8  Barb.  Cr.  L  5-30  1 

3  Barb.  Cr.  L.  547.  24     "       418.  «  2  R.  S.  660,  fy2,  sub.  .3. 

Cro.  Jac.  556.  s  B.arb.  Cr.  L.  534.                        Id.  847,  <y2,  sub.  3,  4lh  ed. 

1  Hale's  Cr.  L.  459.  Wats,  on  Sherifl'.  58.  i"  Barb.  Cr.  L.  530. 
2  Hill,  86. 


10  rm:iii  duties  as  pii:.\ci-:  officers. 

his  escape;  the  nature  and  tlfi:rre  ofwliirh  must  (1c|hmi(1  ujton  the  cir- 
cumstances ol"  the  case;  such  as  the  state  of  the  county,  the  ma;;nitude 
of  the  olTence,  the  age  and  character  of  the  j)risoner,  or  the  j)r<thabilily 
of  a  rescue  or  escajie.  The  olhccr  should  treat  the  prisoner  with  such 
kindness  and  humanity  as  may  be  consistent  with  his  security,  and 
will  not  he  warranted  in  employing  any  harsh  or  unnecessary  con- 
straint, yet  it  his  <luty  to  use  such  reasonable  pre<!aulion  as  the  case 
requires  to  prevent  an  escape  ;  cspecinlly  in  arrests  for  felony,  or 
otVeuces  of  magnitude.' 

^  GS.  Where  one  has  been  duly  arre-iled  by  an  olHcer,  under  civil 
process,  anil  is  in  his  custody,  or  is  in  jail,  such  person  is  in  the  custoily 
of  the  law,  and  if  he  esca|»e,  or  is  wrongfully  discharged,  or  improp- 
erly let  to  bail,  it  is  the  duly  of  the  ollicer  forthwith  to  retake  him,  wher- 
ever he  may  be  found,  whether  it  be  in  his  own  county,  or  in  another 
county  to  whici)  lu  may  have  fled.  Ami  on  being  rearrested  he  may  be 
brouiiht  back  to  the  county  where  he  was  so  held.  And  it  is  immate- 
rial whether  the  prisoner  was  sutVered  to  go  at  large,  or  he  escaped 
through  the  negligence  of  the  otiicer  or  others.  The  distinction  be- 
tween voluntary  and  negligent  escapes  does  not  apply  to  criminal 
cases.'  And  while  the  prisoner  is  in  the  custo.ly  of  the  law,  he  can- 
not be  rearrested  and  taken  out  of  the  custody  of  the  ollicer  making 
the  arrest,  or  of  the  jailer  having  him  in  charge,  upon  any  other  pro- 
cess whether  in  a  civil  or  criminal  case,  except  upjn  habeas  corpus 
duly  granted.  When  he  is  detained  upon  a  criminal  charge,  the 
supremi  court,  or  any  justice  thereof,  may  allow  him  to  be  arrested 
upon  civil  process  ;  bat  such  arrest  is  not  to  alVecl  his  arrest  upon  the 
criminal  process,  or  release  him  therefroui.^  If  the  accused  be  under 
arrest,  in  jail  or  upon  the  limits,  on  civil  process,  the  ollicer  having  a 
criminal  warrant,  must  wait  until  he  is  discharged  from  such  civil 
arrest,  or  complaint.  If.  in  such  cas.»,  the  criminal  warrant  be  such 
as  may  be  executed  by  the  o.'hcer  having  the  j)ris^)ner  in  custody,  it 
should  be  left  with  him,  and  he  may  detain  the  prisoner  thereunder,  on 
the  termination  of  his  civil  arrest ;  and  he  may  do  s  >  without  warrant, 
if  the  charge  b^  f  >r  a  felony.  But  if  the  otfic.^r  having  him  in  custody 
under  such  civil  process,  {jilluw  the  ollicer  having  criminal  process,  to 
take  him  out  of  his  custody,  he  will  be  liable  for  an  escape.*  And 
if  he  is  HO  taken,  the  officer  so  holding  him  should  retake  him.  If  the 
party  be  in  jail,  on  any  oth.-r  criminal  charge  and  fully  «',(»mmitted  for 
trial,  the  magistrate  to  whom  the  second  complaint  is  made,  should  hear 
it,  and  if  it  is  sustained,  he  should  srnd  a  warrant  of  detainer  to  the  jailer. 
Such  seems  to  be  the  English  practice."     If  he  has  not  been  fully  com- 

I  B.irb.  Cr.  L.  &37.  '  l*^*  Won<l.  O.'IO.  »  New  York  .luKticc,  573. 

»  C  Ilili.  311.  *  '•  Jl"*  I'r-  Kop.  93. 


AND  ON   ARRi:ST.S  FUR  CRI.Mi:.  41 

initted,  he  may  be  brought  up  and  examined  under  the  second  com- 
[tlaint,  but  not  so  as  to  interfere  with,  or  discliarge  him  from  the  first 
arrest. 

4.  OF  muNGi\(;  nii:  puisoneu  ur.ruiu;    riii;  magistrate. 

^  (59.  Where  an  arrest  has  been  made  without  warrant,  the  ofTicer 
may,  of  course,  release  the  prisoner,  if  he  is  satisfied  that  the  alleged 
offence  has  not  been  committed,  or  that  the  i)ers<)n  so  arrested,  is  not 
guilty  of  the  charge,  and  not  otherwise.  Ikit  if  he  holds  him  by  virtue 
of  a  warrant,  duly  issued,  he  cannot  release  him  of  his  own  motion, 
whether  he  knows  him  to  be  innocent  or  not,  but  he  must  obey  the 
command  of  such  warrant.  In  all  cases  of  arrest,  whether  such  arrest 
be  made  with,  or  without  warrant,  such  prisoner  must  be  brought, 
without  delay,  before  a  proper  magistrate  for  examination.  And  no 
magistrate  issuing  any  such  warrant,  can  authorize  or  direct  the  oflicer 
holding  it,  verbally  or  by  writing  on  the  warrant,  to  detain  or  commit 
the  prisoner  when  he  shall  be  arrested,  until  a  future  day  for  examina- 
tion, without  first  having  the  prisoner  brought  before  him.  And  if  the 
officer  obey  any  such  direction,  he  and  the  justice  will  be  trespassers.' 
But  if  the  arrest  is  made  at  night,  or  upon  Sunday,  the  prisoner  may 
be  detained  by  the  ofTioer  until  the  next  day,  and  then  be  brought 
before  a  magistrate. 

^  70.  If  the  arrest  is  made  without  warrant,  the  officer  should  take 
the  prisoner,  forthwith,  before  the  nearest  and  most  convenient  justice 
of  the  town  or  city  where  the  ofTence  was  committed,  if  such  offence 
be  one  which  may  be  finally  decided  by  a  justice  of  the  peace.  But 
if  the  offence  be  one  which  a  justice  of  the  peace  cannot  finally  decide, 
the  prisoner  may  be  taken  before  any  justice  of  the  county  where  the 
crime  was  committed.  The  officer,  however,  ought  not,  in  any  case, 
where  he  is  authorized  to  take  the  prisoner  before  any  magistrate*  of 
the  county  at  large,  to  take  him  before  one  living  remote,  whereby  the 
prisoner  may  be  deprived  of  the  aid  of  counsel,  or  embarrassed  in 
procuring  witnesses  or  bail. 

^71.  Where  the  arrest  is  made  under  a  warrant,  the  oflicer  making 
such  arrest,  must  obey  the  command  of  such  warrant,  and  bring  the  pris- 
oner before  the  magistrate  before  whom  the  same  is  made  returnable. 
Where  the  warrant  is  made  returnable  before  a  magistrate,  other  than 
the  one  who  issued  the  same,  as  it  is  required  to  be  in  certain  cases, 
if  the  former  justice  be  absent,  or  his  office  be  vacant  at  the  time  of 
making  the  arrest,  then  the  officer  making  such  arrest  may  bring  the 
prisoner  before  the  magistrate  issuing  the  warrant.     In  such  cases, 

'  16  Barb.  303. 


42  THEIR  DITIF.S  AS  PKACE  OFFICERS, 

however,  the  odicer  inakiuff  tlie  arrest,  should  first  make  return  to  the 
warrant,  showing  such  absence  or  vacancy  in  the  olhce  of  the  inairis- 
trate  U^tore  whom  such  warrant  is  made  returnable.' 

,3  7*J.  If  the  warrant  l)e  made  returnable  before  the  mngistrate  issu- 
ing it.  the  prisoner  shall  be  brought  before  such  magistrate.  Hut  il  he 
is  absent,  or  his  ollice  is  vacant,  then  he  shall  be  brought  before  the 
nearest  magistrate  in  the  same  county ;  and  the  warrant  by  virtue  oJ 
which  the  arrest  shall  have  been  made,  with  a  proper  return  endorsed 
thereon,  and  signed  by  the  ollicer  making  the  arrest,  shall  be  delivered 
to  such  magistrate.^  In  all  such  cases,  wliere  a  prisoner  is  brought 
before  a  magistrate,  other  than  the  one  before  whom  the  warrant  is 
made  returnable,  the  olVicer's  return  to  the  warrant  must  show  the 
absence,  or  vacancy  in  the  ollice.  of  such  latter  m;igistrate.^ 

^S  "i'i.  When  an  arrest  is  mnde  in  a  countv  diflerent  from  that  in 
which  the  warrant  issued,  and  the  otlence  charged  be  not  i)unishable 
with  death,  or  imprisonment  in  a  state  prison,  if  the  person  arrested 
require  to  be  brought  before  a  justice  of  the  county  in  which  he  shall 
have  been  arrested,  it  shall  be  the  duty  of  the  officer  making  the  arrest, 
to  convey  him  before  a  magistrate  of  such  county,^  who  may  take 
from  the  prisoner  a  recognizance,  with  sufficient  sureties  for  his 
api>earance  at  the  next  court,  having  cognizance  of  the  offence  in  the 
county  where  the  olFence  shall  be  alleged  to  have  been  committed.* 
And  such  magistrate  shall  certify  on  the  warrant,  the  fact  of  his  letting 
the  prisoner  to  bail,  and  shall  deliver  the  same,  with  the  recognizance, 
to  the  officer  having  charge  of  the  prisoner,  who  shall  deliver  the  same 
without  unnecessary  delay  to  the  clerk  of  the  court  in  which  such 
prisoner  shall  have  been  recognized  to  api>ear.  If  it  be  not  a  case 
where  the  prisoner  can  be  let  to  bail  by  a  magistrate  in  such  county, 
or  if  such  magistrate  refuse  to  let  him  to  bail,  the  oflicer  making  the 
arrest  shall  take  the  prisoner  before  a  magistrate  of  the  county  where 
the  warrant  originally  issued.* 

;3  71.  If  the  ofTence  of  which  the  prisoner  is  charged,  is  punishable 
with  death  or  imprisonment  in  a  state  prison,  the  officer  making  the 
arrest  in  a  diffiTcnt  county  fn'm  that  in  which  said  warrant  issued, 
shall  carry  the  prisoner  to  the  county  where  the  warrant  was  origin- 
ally issued,  before  some  magistrate  therein.^  And  no  in.igistrate  can 
let  such  prisoner  to  bail  in  the  county  whore  arrested,  and  if  any  such 
magistrate  d<»es  let  him  to  bail,  the  ulhcer  should  not  discharge  him, 
and  if  he  does  ilischarge  him.  it  will  be  an  escape,  and  the  officer  will 
be  bound  to  retake  him.     The  distinction  between  vo/unlnri/  and  7irg- 

I  17  W.n.J    211.  *2R  a  707.  <>7.  t  2  R  H  707,  <;11. 

»  •' K  H  7()H  (,12  I«I  n^H).  (,7,  Jlh  cd.  Id.  Wl,  (^11,  Itli  ed. 

"id  h'.tl,  (,12,  Uh  cd  •  Id.  V«     •  Id.  ^9. 

1  17  Wend.  211. 


AND  ON  Aiaii:sTs  roll  crimf:.  43 

Uirent  escapes  does  not  extend  to  criminal  matters,  and  an  oHlcer  may 
retake  a  j)ri.soner  whether  he  has  permitted  him  to  go  at  large  improp- 
erly, or  he  has  escaped  without  his  knowledge  or  consent.* 

^  75.  Where  one  is  arrested  upon  a  l)ench  warrant,  alter  indict- 
ment, he  must  be  brought,  ibrlhwith,  before  the  court  where  the  war- 
rant is  returnable,  or  be  delivered  by  the  officer  making  the  arrest 
to  the  proper  jail  of  the  county  where  the  indictment  was  found.  I'ul 
if  the  court  be  not  in  session,  and  the  ])risoner  desires  to  be  let  t*;  bail, 
the  oflicer  shall  first  take  him  before  some  proper  officer  authorized  to 
let  to  bail  in  the  particular  case.  If  the  prisoner  is  arrested  in  a  county 
other  than  that  in  which  the  indictment  was  found,  the  same  proceedings 
shall  be  had  as  to  letting  the  prisoner  to  bail,  as  on  an  indorsed  war- 
rant before  indictment.*  If  the  prisoner  is  in  the  jail  of  anolhercounty, 
upon  the  same  charge,  the  slierilf  thereof  may  deliver  him  up  to  the 
olficer  of  the  county  where  he  is  indicted,  on  the  production  of  a  bench 
warrant  from  the  county  where  indicted.' 

^  70.  Where  an  officer  shall  have  arrested  a  prisoner  on  a  criminal 
charge,  in  any  county,  he  may  convey  him  through  such  parts  of  any 
other  county,  or  counties,  as  shall  be  in  the  ordinary  route  of  travel 
from  the  place  of  arrest  to  the  place  where  the  prisoner  is  to  be  con- 
veyed, and  such  conveyance  shall  not  be  deemed  an  escape.^  And 
while  so  passing  through  such  other  county,  or  counties,  such  officer 
shall  not  be  liable  to  an  arrest  on  civil  process ;  and  he  shall  have  the 
like  power  to  require  any  citizen  to  aid  him  in  securing  such  prisoner, 
and  to  retake  him  if  he  escape,  as  if  he  was  in  his  own  county,  and  a 
refusal,  or  neglect  to  render  such  aid,  shall  be  an  offence  in  the  same 
manner  as  if  he  was  an  olficer  of  the  county  where  such  aid  shall  be 
be  recpiired.^ 

g  77.  When  the  prisoner  is  brought  before  the  proper  magistrate  for 
examination,  it  will  be  the  duty  of  the  officer  making  the  arrest,  to 
retain  such  prisoner  in  his  custody,  under  the  direction  of  such  magis- 
trate, until  he  is  committed  or  discharged,  or  let  to  bail.  Or,  he  may 
be  committed  to  any  safe  place  of  custody,  during  any  adjournment  of 
the  examination,  verbally,  or  by  warrant;  or  to  the  county  jail,  from 
time  to  time,  for  future  examination,  by  warrant  of  the  magistrate. 
There  is  no  limitation  as  to  the  time  during  which  the  officer  may 
detain  a  prisoner,  after  bringing  him  before  the  justice,  and  before  pro- 
ceeding to  the  examination,  as  under  a  justice's  warrant  in  civil  cases.* 
The  oflicer  will  have  done  his  duty  when  he  shall  have  brought  the 

1  6  Hill,  ZU.  <  2  R.  S.  748,  ^46.  6  2  R.  S.  229,  ^25. 

2  Ante,  ^73.  Id.  931,  ()63,  4th  ed.  Id.  431,  ^23,  4Lh  cd. 

2  R.  S.  912,  \i58,  4th  cd.      6  2  R.  S.  748,  ^47.  10  Weud.  515. 

Laws  1830,  ch.  300,  ^62.  Id.  931,  ^54,  4th  ed. 

»  9  Wend.  505. 


44  Tni:iu  nrTir.s  as  phage  officers, 

j'risoncr  before  the  proper  mairistr.itr  ;  and  if  such  mai^istrale  delays, 
unnecessarily,  ihe  examination.  1h\  and  not  the  olhcer,  will  In*  resjxm- 
sible.  But  the  olhcer  should  d<)  nothing  to  delay  or  prevent  a  sjteedy 
examination,  as  he  may  thereby  lose  the  protecti(»n  of  his  warrant,  and 
become  liable  for  false  imi)risonment.  Where  the  prisoner  waives  an 
examination,  or  tho  nia^^istrate,  after  examination,  decides  to  commit 
him  to  answer  the  charue.  if  the  prisoner  is  ready  to  give  bail,  the 
oflicer  must  take  him  before  some  j)roper  judge  or  olhcer  authorized  to 
take  bail  in  the  case,  if  the  committing  magistrate  is  not  authorized  so 
to  do  ;  and  on  his  giving  bail  in  the  amount,  and  with  sureties  satisfac- 
tory to  the  judge  or  orticer,  he  is  to  be  released,  and  the  duties  of  the 
oflicer  having  him  in  charge,  are  at  an  end.  If  he  docs  not  give  bail, 
the  oflicer  must  forthwith  deliver  him  to  the  custody  of  the  jailer,  at 
the  jail  of  the  county. 

^  78.  Any  magistrate  who  shall  commit  any  person  charged  with 
any  oflence,  to  prison,  or  by  whom  any  vagrant  or  disorderly  person 
shall  be  committed,  may  cause  such  person  to  be  searched  for  the  pur- 
pose of  discovering  any  property  he  may  have ;  and  if  any  property 
be  found,  the  same  may  be  taken,  and  applied  to  the  support  of  such 
person  while  in  confinement.' 

5.    SEARCH   WARRANTS. 

^  79.  The  oflicers  empowered  to  issue  warrants  for  the  arrest  of 
persons  charged  with  crime,  are  also  authorized  to  issue  warrants  to 
search  for  stolen  or  embezzled  goods."  Every  such  warrant  shall  be 
direcle<l  to  the  sherifl'  of  the  county,  or  to  any  constable  of  the  town 
or  city  ;'  for  it  cannot  be  executed  by  a  private  citizen.*  It  shall  com- 
mand the  oflicer  to  search  the  place  where  such  property  is  suspected 
to  be  concealed,  in  the  day  time,  (or  it  may  authorize  such  search  to 
be  made  in  the  night  time.')  and  to  bring  such  jn-operly  before  the 
magistrate  issuing  the  warrant."  The  iijace  to  be  searched  must  be 
particularly  designated,  and  the  proi)erly  must  be  particularly  described 
in  such  warrant.' 

<\  80.  The  oflicer  to  whom  such  warrant  is  directed  and  delivered 
for  execution,  should  be  careful  that  he  does  not  search  in  any  place 
not  particularly  described  in  the  warrant.  And  if  such  w.arranl  does 
not  exjiresslv  authorize  a  search  in  the  night,  it  must  be  done  in  the 
dav  time,  between  sunrise  and  sunset.  The  ollicer  should  also  be 
careful  that  he  does  not  seize  any  goods  which  do  not  corresiKjnd  with 

«  2n  F  TIC.  V--'-  *'2Ji.H.  7ir,,  (,2H.  •  *-'  U  S  liC,  <;2r,. 

*l.l  yj'.t  c.Hh  lih  c<l.  M  '.o,  ("/lA.  iih  cJ.  M  '.'J'.!, «;,;',;!,  nil  ed. 

«  Auu-  <M.  '  '^  It   •'^    <«'''.  <>'2T'  '  1  't  ^  '■'■',  <A  1 
»  2  U  H    :»''•.  <>'<'>                        I'J-  ''f'^'^,  <^,  4ll'  cJ-  IJ-  202,  ^11,  Itli  od. 

*Id.  W^t,  ^53,  llh  C<1. 


AND  ON  ARIli:S'J'S  FOR  GRIM  I).  4^ 

the  description  in  tlie  warrant.  Ikit  if  lie  seizes  ;^'(;()(ls  wliicli  corre- 
spond with,  and  come  within  the  descrijition  of  those  stolen,  he  will  be 
justified  in  taking  them,  though  they  do  not  prove  to  be  the  goods  lost 
by  the  C()ni])lainant.'  And  if  the  officer  find  other  property  in  the 
place  designated,  which  it  is  reasonable  to  believe  was  stolen  also,  or 
which  may  be  necessary  to  convict  the  possessor  of  the  stealing  of  the 
proj)erty  searched  for,  he  may  sei/.e  such  proj)erty.  If  admission  to 
the  premises  described,  is  refused,  after  a  demand  to  enter,  and  notice 
of  the  officer's  business,  the  outer  door  of  the  house  designated  may 
be  broken  open  ;  and  on  refusal  of  the  keys,  all  inner  doors,  boxes, 
chests  and  trunks,  necessary  to  execute  the  warrant.  If  the  goods 
are  found  in  the  possession  of  any  one,  and  there  is  reason  to  believe 
that  he  is  the  person  who  stole  them,  it  will  be  the  duty  of  the  officer 
to  arrest  such  person,  and  to  bring  him  before  the  magistrate,  to  be 
dealt  with  according  to  law.  If  the  officer  jiursues  strictly  the  direc- 
tion of  the  warrant,  he  will  not  be  responsible,  though  the  goods  are 
not  found  in  the  place  directed  to  be  searched ;"  nor  will  it  make  any 
ditference  if  the  warrant  is  improperly  granted,  if  it  be  regularly 
granted,  and  legal  in  form.^ 

§  81.  When  property  alleged  to  have  been  stolen,  shall  come  into 
the  custody  of  any  constable,  marshal,  sherilf,  or  other  person  author- 
ized to  perform  the  duties  of  any  such  officer,  he  shall  hold  the  same 
subject  to  the  order  of  the  officers  authorized  to  direct  the  disposin"- 
of  it.^  Upon  receiving  satisfactory  proof  of  the  title  of  any  owner  of 
such  property,  the  magistrate  who  shall  take  the  examination  of  the 
person  accused  of  stealing  such  property,  may  order  the  same  to  be 
delivered  to  such  owner,  on  his  paying  the  reasonable  and  necessary 
expenses  incurred  in  the  preservation  of  such  property,  to  be  certified 
by  such  magistrate ;  which  order  shall  entitle  such  owner  to  demand 
and  receive  such  property.'  If  stolen  property  shall  not  have  been 
delivered  to  the  owner  thereof,  the  court  before  which  a  conviction 
shall  be  had  for  the  stealing  of  such  property,  may,  upon  proof  of  the 
ownership  of  any  person,  order  the  same  to  be  restored  to  him.'  If 
stolen  property  shall  not  be  claimed  by  the  owner  thereof,  before  the 
expiration  of  six  months  from  the  time  any  person  shall  have  been  con- 
victed of  stealing  such  prctperty,  the  magistrate,  sheriffi,  constable,  or 
other  officer  or  person  having  the  same  in  his  custody,  shall  deliver 
such  property  to  the  county  superintendents  of  the  poor,  on  being  paid 
the  reasonable  and  necessary  expenses  incurred  in  the  preservation 
thereof,  to  be  appropriated  to  the  use  of  the  poor  of  such  county.'' 

1  5  Metcalf,  98.  <  2  R.  S.  746,  ^30.  «  2  R  S    74G  uS^i 

2  B.irb.  Cr.  L.  601.  Id.  930,  ^37,  4th  cd.  Id.  930,  ()46  4th  cd 

3  10  John.  263.  s  2  R.  S.  746,  ^31.  7  2  R   S    747  <yU 

Id.  980,  V38,  4th  cd.  Id.  930,  (^-I'l,  4th  ed. 


46  Tlir.lR  DUTIES  AS  PEACE  OFFICERS, 

(V     n-ClTIVTH    ntiiM    JISTICK    FR<t.M    oTIir.K    HTATKS. 

3  SV».  The  constitution  of  the  United  St:ites  provides,  that  if  a 
person  cluiruod  in  any  i-latc  with  lieason,  felony  or  oiht-r  crime,  who 
shall  flee  from  justice,  and  be  found  in  another  state,  he  shall,  on  demand 
of  the  executive  authority  of  the  state  from  which  he  (led,  be  delivered 
up  to  be  removed  to  the  slate  having  jurisdiction  of  the  crime.'  And 
by  act  of  congress,  it  is  declared  that  whenever  the  executive  authority 
of  any  state  in  the  union,  or  of  either  of  the  territories,  shall  demand 
any  person  as  a  fugitive  from  justice,  of  the  executive  authority  of  any 
slate  or  territory,  to  which  such  person  shall  have  lied,  and  shall 
moreover  produce  the  copy  of  an  indictment  found,  or  an  afTulavit 
made  before  a  magistrate  of  any  state  or  territory  as  aforesaid, 
charging  the  person  so  demanded,  with  having  committed  treason, 
felony  or  other  crime,  certified  as  authentic  by  the  governor  or  chief 
magistrate  of  the  state  or  territory  from  whence  the  i)erson  so  charged 
lied,  it  shall  be  the  duty  of  the  executive  authority  of  the  state  or  ter- 
ritory to  which  such  person  shall  have  fled,  to  cause  him  or  her  to  be 
arrested,  and  secured,  and  notice  of  the  arrest  to  be  given  to  the  exec- 
utive authority  making  such  demand,  or  to  the  agent  of  such  authority 
appointed  to  receive  the  fugitive,  and  to  cause  the  fugitive  to  be  deliv- 
ered to  such  agent  when  he  shall  appear.  But  if  no  such  agent  shall 
appear  within  six  months  from  the  time  of  the  arrest,  the  prisoner  may 
be  discharged.' 

,^  S3.  If  an  indictment  has  been  found  against  any  liigitivc  who  has 
fled  from  justice  from  this  slate,  before  the  governor  thereof  will  issue 
his  requisition  upon  the  governor  of  the  state  or  territory  where  such 
fugitive  may  be,  for  his  arrest  and  delivery  up,  under  the  provisions 
of  the  act  of  congress  aforesaid,  there  must  be  j)ro<lu<:e(l  to  him  a  true 
copy  of  such  indictment,  certified  by  the  clerk  of  the  county,  where 
the  same  was  found,  under  his  hand  and  the  seal  of  his  olRce.  Such 
certificate  should  be  in  the  usual  form  where  coj)ies  of  records  are  so 
certified,  and  should  slate  that  the  clerk  iiad  compared  the  copy  of  the 
indicttnent  with  the  said  original  on  file  in  his  ollice,  and  that  such 
copy  wa-s  a  true  transcript  therefrom,  and  of  the  whole  of  such  original, 
and  of  all  the  endorsements  thereon. 

;3  81.  If  such  fugitive  has  not  been  indicted,  then  there  must,  in 
like  manner,  l)e  produced  to  the  governor,  an  allidavit  or  aflidavits,  in 
due  form  of  law,  taken  before  some  magistrate  authorized  by  the  laws 
of  this  state,  to  issue  process  for  the  apprehension  of  criminals,'  show- 
ing the  commission  of  some  act  of  treason,  felony  or  other  crime.     If 

»  Com.  U.  8.  art.  1  vi  >  L.-iw«.  U  S  Frl..  li>,  1703,  ^1,    »  AiiU-,  vOJ. 

1  8lory  H  vd.  2M. 


AND  ON  ARRHSTS  I T)R  CRIMH.  47 

such  anidavit  was  taken  belure  a  justice  of  the  ju-ace,  or  other  inferior 
magistrate,  then  there  should  be  annexed  t<»  it,  the  certificate  of  the 
clerk  of  the  Cdunty,  where  such  maL,'istralc  resides,  in  which  lie  shall 
certify,  under  liis  hand  and  seal  of  ollice,  that  the  person  before  whom 
such  allidavit  was  taken,  was,  at  the  date  thereof,  such  justice  of  the 
peace  or  other  mai^istrate,  in  and  for  said  county,  and  that  the  jurat 
to  such  atlidavit  is  signed  by  such  ollicer  in  his  own  proper  hand- 
writing. 

i5  85.  If  on  examination  of  such  affidavit,  or  copy  of  indictment,  the 
governor  of  this  state  shall  be  satisfied  that  a  crime  has  been  committed 
within  the  meaning  of  the  constitution  of  the  United  States,  and  of 
the  act  of  congress  aforesaid,  he  shall  certify,  in  writing,  to  the  gov- 
ernor or  chief  magistrate  of  the  state  or  territory  where  the  fugitive 
may  be,  that  such  copy  of  indictment  or  affidavit  is  authentic  and  is 
authenticated  in  accordance  with  the  laws  of  this  state.  And  he  shall 
therein  require  that  such  fugitive  be  apprehended  and  delivered  to  any 
person  he  may  designate  in  such  recinisilion,  specially  authorized  by 
liim,  to  receive  and  convey  such  fugitive  to  this  state  to  be  dealt  with 
according  to  law.  Such  certificate  and  requisition  is  usually  sealed 
with  the  privy  seal  of  the  state,  and  signed  by  the  governor  and 
attested  by  the  private  secretary,  and  is  then  securely  attached  to  the 
allidavit  or  copy  of  indictment,  on  which  the  same  is  granted. 

^  8(5.  Such  requisition  and  the  proofs  annexed,  are  then  delivered 
by  the  governor  to  the  person  he  has  designated  and  empowered  therein 
to  receive  and  convey  here  such  fugitive.  The  governor  at  the  time 
of  granting  such  requisition,  also  gives  to  such  person  a  separate  power 
and  authority,  in  writing  under  his  hand  and  the  privy  seal,  and  attested 
by  the  private  secretary  in  the  same  manner  as  the  requisition,  author- 
izing such  person  to  receive  such  fugitive  from  the  proper  authorities 
of  the  stale  on  which  such  requisition  is  made,  and  to  convey  him  to 
this  stale  to  be  dealt  with  according  to  law'.  The  agent  so  empow- 
ered, should  also  be  furnished  with  a  bench  warrant,  if  the  fugitive  has 
been  indicted ;  or  if  not,  then  with  a  warrant  from  the  magistrate 
before  whom  the  complaint  was  made,  for  the  arrest  and  detention  of 
the  prisoner. 

§  87.  Such  requisition,  with  the  proofs  annexed,  are  then  to  be  pre- 
sented to  the  governor  or  chief  magistrate  of  the  state,  upon  whom  the 
requisition  is  made,  by  the  agent  or  person  so  authorized  to  receive 
and  convey  such  criminal  to  this  state.  If,  on  inspection,  such  gover- 
nor or  chief  magistrate  shall  find  that  such  requisition  is  in  due  form, 
and  that  the  proofs  are  sufiiciently  authenticated  by  the  governor  of 
this  state,  and  that  they  show  that  a  crime  has  been  committed  within 
the  meaning  of  the  constitution  of  the  United  States,  and  of  the  act  of 
congress,  he  issues  his  warrant  under  his  hand  and  seal  of  office,  to  the 


48  THEIR  DUTIES  AS  PEACE  OFFICERS, 

sherifV  of  the  county  where  such  fugitive  is  sup|)osc(l  to  be.  Such 
warrant  is  also  (hredetl.  i^cncrally,  to  the  shorilf,  constaMe,  and  other 
peace  ofl'icers  of  all  the  counties  of  the  state,  and  requiring  hiui  and 
Uiem  to  arrest  and  secure  such  fugitive,  wherever  lie  may  be  found, 
within  the  state,  and  to  deliver  him  into  the  custody  of  the  person 
authorized  to  receive  him,  to  be  taken  back  to  the  state  from  which  he 
fled.  The  governor  also  delivers  a  du])licate  of  such  warrant  to  the 
person  so  authorized  to  receive  such  fugitive. 

^  88.  Under  this  warrant,  it  will  be  the  duty  of  every  sheriir,  consta- 
ble, or  other  peace  ollicer,  tt»  whom  the  same  is  directed,  and  delivered, 
forthwith  to  arrest  such  fugitive,  if  he  may  be  found  within  his  juris- 
diction, and  to  deliver  him  to  the  custody  of  the  person  or  agent  so 
authorized  to  receive  him.  When  such  warrant  is  issued  by  the  gov- 
ernor of  this  state,  for  the  arrest  of  a  fugitive  from  another  state,  found 
here,  under  and  pursuant  to  a  rctjuisition  upon  him  for  that  purpose, 
the  i)0wers  and  duties  of  every  sherilF,  or  other  otliccr,  to  whom  such 
warrant  is  directed  and  delivered  for  execution,  are  the  same  in  all 
respects,  as  upon  a  warrant  issued  by  any  magistrate  here  for  the 
arrest  of  one  charged  with  crime  against  the  laws  of  this  state. 

^  89.  The  agent  or  person  authorized  to  receive  such  fugitive,  is 
empowered  to  transport  him  or  her  to  the  state  or  territory  from 
which  he  or  she  shall  have  lied.  And  if  any  j)erson  or  persons  shall, 
by  force,  set  at  liberty,  or  rescue  the  fugitive  from  such  agent,  while 
transporting  him  or  her  as  aforesaid,  such  person  or  persons  shall,  on 
conviction,  be  fined  not  exceeding  five  hundred  dollars,  and  be  imj)ris- 
oned,  not  exceeding  one  year.'  When  a  fugitive  from  this  stale  shall 
be  brought  here,  under  the  requisition  of  the  governor,  he  shall  be  taken 
to  the  county  where  the  indictment  was  found,  and  delivered  to  the 
keeper  of  the  common  jail  of  the  county,  unless  such  prisoner  desires 
to  give  bail,  when  he  shall  be  taken  before  some  officer  of  such  county 
authorized  to  let  to  bail  in  such  case.  If  no  indictment  has  been  found 
against  the  })risoner,  then  he  shall  be  taken  to  the  county  where  the 
warrant  issued,  and  the  same  proceedings  shall  be  had  as  to  the  exam- 
ination of  the  prisfjner,  letting  him  to  bail,  or  committing  him  to  jail,  as 
if  the  arrest  had  been  made  in  this  state. 

5  90.  All  costs  and  expenses  in  the  apprehending,  securing,  and 
transmitting  such  fugitive  to  the  slate  or  territory  making  such  demand, 
shall  be  paid  by  such  state  or  territory.''  And  it  is  provided  by  law  in 
this  state,  that  whenever  the  governor  thereof  shall  demand  the  sur- 
render of  a  fugitive  from  justice  from  the  governor  of  any  other  state  or 
territory,  or  foreign  government,  the  accounts  of  the  persons  emj)loyed 

»  Lawn  U.  8.  Feb.  12, 1793,  <>2.  «  Lawn  U.  8.  Feb.  12, 17y3,  (;2. 
1  Blory's  «L  2»1.  1  8tory'»  cd.  2»1. 


AND  ON  ARRKSrS  FOR  CRIMES.  ]() 

l)y  him   for  that  |)iirj)oso,  for   their  services,  shiill  he  audited   hv  tht- 
comptroller,  and  \m\d  out  of  the  treasury.' 

,§91.  When  one  flees  from  justice  froin  another  state  or  territory, 
and  is  found  here,  any  magistrate  authorized  to  issue  a  warrant  for  thf 
arrest  of  one  charged  with  crimes  committed  here,'^  shall  have  power 
to  issue  jirocess  for  the  ajiprehension  of  such  person.*  And  the  pro- 
ceedings shall  he  in  all  respects  similar  to  those  under  the  statutes  of  this 
state  for  the  arrest  and  commitment  of  persons  commiting  offences 
within  this  state.^  If  upon  the  examination  it  shall  satisfactorily  ajipear 
that  such  person  has  commited  a  criminal  offence  and  is  a  fugitive  from 
justice,  such  magistrate  by  warrant,  reciting  the  accusation,  sh;dl  com- 
mit such  fugitive  from  justice  to  the  common  jail,  thereto  be  detained, 
for  such  time,  to  be  specified  in  said  warrant,  as  the  said  magistrate 
shall  deem  reasonable,  to  enable  such  fugitive  to  be  arrested,  by  virtue 
of  the  warrant  of  the  executive  of  this  state,  issued  according  to  the 
act  of  congress,  upon  the  requisition  of  the  executive  authority  of  the 
state  or  territory,  in  which  such  fugitive  committed  such  offence,  unless 
such  person  shall  give  bail,''  in  such  sum  as  the  magistrate  may  deem 
proper,  conditioned  that  he  will  appear  before  such  magistrate  at  sucli 
time  as  he  shall  deem  reasonable  ;  and  will  deliver  himself  up  to  be 
arrested  upon  the  warrant  of  the  executive  of  this  state.^  The  person 
thus  arrested,  detained  or  bailed,  shall  be  discharged  from  such  deten- 
tion or  liail,  unless  at  or  before  the  time  designated  in  the  warrant  of 
commitment,  or  in  the  condition  of  the  bond,  he  shall  be  demanded  or 
arrested  by  the  warrant  of  the  executive  of  this  state/  It  shall  be 
the  duty  of  the  magistrate  to  make  return  to  the  next  court  of  sessions 
of  the  county,  of  his  proceedings  in  the  premises  ;  and  it  shall  also  be 
the.  duty  of  such  court  to  inquire  into  the  cause  of  the  arrest  and 
detention  of  such  person ;  and  if  such  person  is  in  custody,  or  the  time 
for  his  arrest  as  designated  in  the  condition  of  the  bail  bond  has  not 
elapsed,  the  said  court  of  sessions  in  its  discretion,  may  discliarge  the 
said  person  from  detention,  or  may  order  the  said  bail  bond  to  be  can- 
celled, or  may  continue  his  detention  for  a  period  bevond  the  tijne 
specified  in  the  warrant  of  commitment,  or  may  order  new  bail  to  be 
given,  conditioned  for  the  surrender  of  the  said  person  at  a  time  shorter 
or  longer  than  the  time  designated  in  the  bail  bond  taken  by  the  said 
magistrate  ;  and  if  said  person  is  in  custody  may  take  bail,  conditioned 
for  his  appearance  before  said  court,  to  be  surrendered  at  such  time  as 
the  said  court  may  deem  reasonable  and  proper.* 

1  2  R.  S.  748,  <)Vj.  *  2  II.  S.  894,  <)42,  4tli  cd.        7  o  R.  S.  895,  ^40,  4th  cd. 

Id.  031,  ^52,  4th  cd.                  Law.s  1830,  ch.  350.  ^2.  Laws  1830,  ch.  350,  (}4. 

2  Ante,  ^54.  s  o  R.  S.  894,  (^43,  4th  cd.  s  o  R.  S.  895,  ti47,  4th  cd. 

3  2  R.  S.  894,  ^)41 ,  4th  cd.            Laws  18.30,  ch.  350,  <yS.  Laws  1830,  ch.  350-,  <>7. 
Laws  1830,  ch.  350,  ^1.  «  2  R.  S.  895,  ^44,  4th  ed. 

Laws  1830,  ch.  350.  ^4. 
8 


5U  TiiKiu  i»riMi:s  AS  phaci-:  officers, 

7    win  Ki:  Kr.i.i«;ii)i  s  mkktixcs  auk  ni.oTinnr.n. 

592.  No  person  shall  wilfully  disturl),  interrupt  or  disquiet  any  as- 
seml)lai:c  of  people,  met  fi»r  religious  \vorsliii»,  by  profane  discourse, 
rude  and  indecent  behavior,  or  by  makini^  a  noise,  either  within  the 
place  of  worship,  or  so  near  it  as  to  disturb  the  order  and  solemnity  ol 
the  meeting;  nor  shall  any  person  within  two  miles  of  the  place  where 
any  religious  society  shall  be  actually  assembled  for  religious  worship, 
expose  to  sale  or  gift,  any  ardent  or  distilled  liquors,  or  keep  open  any 
huckster  shop,  or  anv  <»ther  ]tlace,  inn.  store  or  grocery,  than  such  as 
shall  have  been  duly  licensed,  and  in  which  such  i>ers<:)n  shall  have 
usually  resided  or  carried  on  business ;  nor  shall  any  person,  within 
the  distance  aforesaid,  exhibit  any  shows  or  plays,  unless  the  same  shall 
have  been  duly  licensed  by  the  jiroper  authority ;  nor  shall  any  person 
within  the  distance  aforesaid,  promote,  aid,  or  be  engaged  in  any  racing 
of  any  animals,  or  in  any  gaming  of  any  description  ;  nor  shall  any 
person  obstruct  the  free  passage  of  any  highway  Xo  any  place  of  public 
worship,  within  the  distance  aforesaid.' 

^  93.  And  it  is  made  the  duty  of  all  sherills,  and  their  deputies, 
coroners,  marshals,  constables,  and  other  peace  ollicers,  who  may  be 
present  at  the  meeting  of  any  assembly  for  religious  worship,  which 
shall  be  interrupted  or  disturbed  in  the  manner  prohibited,  to  apprehend 
►  the  oflender,  and  take  him  before  some  justice  of  the  peace,  or  other 
magistrate  authorized  to  convict,  to  be  proceeded  against  according  to 
law.'  And  all  judges,  mayors,  recorders,  aldermen,  and  justices  of  the 
peace,  within  their  resjiective  jurisdictions,  upon  their  own  view  of  any 
person  ofleuding  as  aforesaid,  may  order  the  oll'ender  into  the  custody 
of  any  such  sherifl*,  or  other  peace  olhccr,  or  of  any  ollicial  member 
of  the  church  or  society  so  asseml)led  and  disturbed,  for  safe  keeping, 
until  he  shall  be  let  to  bail,  or  a  trial  for  such  ollence  bo  had.' 

^  94.  The  duties  of  the  oflicer  in  making  arrests,  ami  bringing  the 
pris(»ner  before  the  magistrate,  under  a  warr.uit  for  vit)lation  of  any  of 
the  foregoing  provisions  are  the  same  as  under  warrants  of  arrest  for 
minor  oflences.* 

3  95.  If  the  person  arrested  sh.ill  demajid  a  triiil  by  jmy,  the  justice 
shall  issue  a  venire  to  any  constable  of  the  county,  or  marshal  of  the 
citv  where  the  olTence  is  to  be  tried,  commanding  liim  to  siunmon  the 
same  number  of  jurors,  and  in  the  same  manner  as  is  provided  for 
summoning  jurors  before  courts  of  special  sessions.* 

<^  90.  If  any  person  convicted  of  any  such  ollence,  shall  not  inmie- 

<  1  R   S  f-TI,  (M.  »  2  R  8.  r.Tr,,  (/,1.                   »  2  R.  8  82,  ^M,  Uh  cl. 

2  R  8  hl,i7>M,  4lho.l  2  R   8.  hj,  </,!,  4lli  cl.            Lawa  1»34,  ch.  78,  ^1.    . 

1 1  R  8  G7G,  Iw.  *  AuW,  <,(,'J,  4t. 

2  R.  8.  82,  ^GO,  4Ui  cd. 


AND  ON  ARRRSTS  FOR  CRl.Mi:.  5i 

diately  pay  the  penalty  incurred,  with  ilie  costs  of  the  convictiun,  <»r 
give  securitv,  to  the  satisfaction  of  the  olFicer,  before  whom  the  con- 
victiun  shall  be  had,  for  the  payment  of  such  penalty  and  costs,  within 
twenty  days  thereafter,  he  shull  be  committed  by  warrant,  to  the  com- 
mon jail  of  the  county,  until  the  same  be  paid,  or  for  such  term,  not 
exceeiliiiii;  thirty  days,  as  shall  be  specified  by  the  warrant.' 

8.    TIIKIK    DUTIES    UNIH'.R    rKACi:    WAKIIANTS. 

^  07.  A  warrant  for  the  arrest  of  one  to  compel  him  to  give  security 
to  keep  the  peace,  shall  be  similar  in  form  to  warrants  for  the  arrest  of 
a  person  charged  with  the  commission  of  crime ;  and  it  may  be  issued 
by  the  same  olRcers  and  no  others.''  The  warrant  shall  be  under  the 
hand  of  the  magistrate  issuing  it,  and  it  may  be  with  or  without  seal. 
It  need  not  contain  a  formal  adjudication  that  there  is  reason  to  fear  the 
commission  of  the  oflence  threatened.  But  it  would  seem  that  it 
should  at  least  appear  upon  its  face,  that  complaint  had  been  made  in 
writing,  and  on  oath,  to  the  magistrate  who  issued  the  same.^ 

gi  98.  The  warrant  should  be  executed  by  the  otficer  to  whom  the 
same  is  directed  and  delivered,  in  the  same  manner  as  a  warrant  for 
the  arrest  of  one  charged  with  crime.  But  if  the  magistrate  issuing 
such  warrant,  be  an  officer  of  limited  jurisdiction,  as  a  justice  of  the 
peace,  alderman  or  the  like,  the  arrest  can  only  be  made  within  the 
county  where  such  warrant  issued.  On  making  the  arrest  the  officer 
shall  bring  the  party  forthwith  before  the  magistrate  issuing  the  war- 
rant ;*  and  he  shall  be  detained  by  such  officer,  under  the  direction  of 
such  magistrate,  as  in  criminal  cases,  until  he  is  discharged  or  gives  the 
security  as  hereinafter  mentioned,  or  is  committed  to  jail  for  w'ant 
thereof. 

^  99.  When  the  party  has  been  brought  before  the  magistrate,  he 
may  be  recjuired  by  him  to  enter  into  a  recognizance  in  such  sum,  not 
exceeding  one  thousand  dollars,  as  such  magistrate  shall  direct,  with 
one  or  more  sufficient  sureties,  to  appear  at  the  next  court  of  sessions, 
to  be  held  in  such  county.'  If  such  recognizance  shall  be  given,  the 
party  complained  of  shall  be  discharged.  But  if  he  refuse  to  find  such 
security,  it  shall  be  the  duty  of  the  magistrate  to  commit  him  to  prison, 
until  he  shall  find  the  same,  specifying  in  the  warrant,  the  cause  of 
commitment  and  the  sum  in  which  such  security  was  required. *  But 
it  is  not  necessary  to  state  the  otFence  with  which  the  party  is  charged 
with  having"  threatened  to  commit.  It  is  enough  if  it  state  the  require' 
ment  to  give  security  and  the  refusal  to  do  so." 

1  1  R.  S.  675,  v68.  3  2  R.  S.  704,  (fyl,  2, 3.  s  id.  ^4. 

2  R.  S.  82,  ^G2,  4th  ed.  Id.  887,  </)!,  2,  3,  4th  cd.     «  Id.  ^o. 

2  Ante  ^54  17  Wend.  181.  ^  17  Wend.  181. 

23      "      6.38.  23        '     638. 

4  2  R.  S.  704,  <)S. 
Id.  888,  <)3,  4th  ed. 


r>0  TIII-.IU  DlTlLvS  AS  TKACK  Ol- TICFJIS, 

;3  100.  Any  piMs.>n  committel  to  jail  for  not  finding  sureties  lor  the 
peace  as  above  presorihi-.l,  may  be  discharged  by  any  two  justices  of 
the  peace  of  the  county,  upon  his  giving  such  security  as  was  first 
rocpiire.l  of  him.'  But  alter  the  record  of  commitment  shall  have  been 
fded  with  the  clerk  of  the  county,  one  justice  cannot  accejtt  such  secu- 
rity.    Two  justices  must  unite.'' 

h  101.  It  is  farther  jirovided  that  every  i>crson  wh<>,  in  ihe  i)rescnce 
of  a  magistrate  authorized  to  issue  a  warrant  in  such  case,  or  in  the 
presence  of  any  court  of  record,  shall  make  any  alVray,  or  threaten  to 
kill  or  beat  another,  or  to  commit  any  oflencc  against  his  person,  or 
property;  and  all  persons  who,  in  the  presence  of  such  magistrate  or 
court,  shall  contend  with  hot  and  angry  words,  may  be  ordered  by 
such  magistrate  or  court  without  any  other  proof,  to  give  security  as 
above  si>ecified,  and  in  default  he  may  commit  such  person  to  jail  until 
he  shall  give  the  same.^ 

9.    LIISOKDERLV    PERSONS. 

^5  102.  The  warrant  for  the  arrest  of  a  disorderly  person,  shall  be 
issued  bv  a  justice  of  the  peace,  and  be  in  the  same  form  as  in  the 
case  of  a  warrant  for  the  arrest  of  one  for  crime  ;  and  the  arrest 
should  be  made  in  the  same  manner,  if  the  party  can  be  found  within 
the  county  where  the  warrant  was  issued  ;  and  he  shall  be  brought 
forthwith  before  the  justice.  And  on  being  so  brought  before  such 
justice,  ho  may  require  of  the  otlender  suflicient  sureties  for  his  or  her 
good  behavior  fur  the  space  of  one  year.  In  default  of  such  sureties 
being  found,  the  justice  shall  make  up,  sign  and  file  in  the  county  clerk's 
office,  a  record  of  sucli  conviction,  sj»ecifying  generally  the  nature  and 
circumstances  of  the  olFence,  and  shall  by  warrant  under  his  hand, 
commit  such  offender  to  the  common  jail  of  the  city  or  county,  there 
to  remain  until  such  sureties  be  found,  or  such  offender  be  discharged 
according  to  law.* 

3  103.  Any  person  committed  to  the  common  jail  for  not  finding 
sureties  for  good  behavior,  may  be  discharged  by  any  two  justices  of 
the  [Kjace  of  the  county,  upon  giving  such  sureties  f<»r  g<K»d  behavior 
.'iS  were  originally  recjuired  from  such  offender.'  After  the  record  of 
conviction  has  been  made  and  filed,  the  magistrate  who  made  the 
commitujcnt  cannot  accept  of  the  sureties  originally  recjuired  by  him, 
and  discharge  the  jtarly.  Two  justices  must  unite  to  accept  the 
security.' 

'  2  R  8. 704,  ^C.                        -  K.  H.  7f)6,  (>8.  »  1  R.  8.  C.39,  60. 

Id.  888,  ^6,  4Ui  t<l                    n    ^^'^  "<,  4th  0(1.  2  R.  8.  54,  ^C,  1th  cd. 

a  23  Wend.  48.                         <  1  li  .-  •  ^  <yj.  «  23  Wend.  48. 

■J.  Id.  OJ,  llh  cd. 


AND  ON  ARRI'.STS  I-T)R  CIlIMi:.  53 

10.    nEGGAItS    AM)    VAGKANTrf. 

^  101.  All  idle  persons  who,  not  having  any  visihle  means  to  main- 
tain themselves,  live  without  employment;  and  all  persons  wandering 
abroad  and  lodging  in  taverns,  groceries,  beer  houses,  out  houses, 
market  places,  sheds  or  barns,  or  in  the  open  air,  and  not  giving  a  t^'ood 
account  of  themselves  ;  all  persons  wandering  abroad  and  begging, 
or  who  go  about  from  door  to  door,  or  jdace  themselves  in  the  streets, 
highway,  passages,  or  other  public  places,  to  beg  or  receive  alms,  shall 
be  deemed  vagrants.' 

g  105.  It  shall  be  tlu;  duty  of  every  constable  or  other  peace  officer, 
whenever  required  by  any  person,  to  carry  such  vagrant  before  a 
justice  of  the  peace  of  the  same  town,  or  before  the  mayor,  recorder, 
or  any  of  the  aldermen  of  the  city  in  which  such  vagrant  shall  be,  for 
the  purpose  of  examination.- 

<5  lOG.  If  such  magistrate  shall  be  satisfied  by  the  confession  of  the 
offender,  or  by  competent  testimony,  that  such  jiersun  is  a  vagrant 
within  the  description  aforesaid,  he  shall  make  up  and  sign  a  record  of 
conviction  thereof,  which  shall  be  filed  in  the  office  of  the  county  clerk, 
and  shall  by  warrant,  under  his  hand,  commit  such  vagrant,  if  he  be 
not  a  notorious  offender,  and  be  a  proper  object  for  such  relief,  to  the 
county  poor  house,  if  there  be  one,  or  to  the  alms  house  or  poor  house 
of  such  town  or  city,  for  any  time,  not  exceeding  six  months,  there  to 
be  kept  at  hard  labor  ;  or,  if  the  offender  be  an  improper  pei'son  to  be 
sent  to  the  poor  house,  then  he  shall  be  committed  to  the  bridewell,  or 
house  of  correction,  of  such  city  or  county,  if  there  be  one,  and  if  none, 
to  the  common  jail  of  such  county,  for  a  term,  not  exceeding  sixty 
days,  there  to  be  kept,  if  the  justice  think  proper  so  to  direct,  upon 
bread  and  water  only,  for  such  time  as  he  shall  direct,  not  exceeding 
one  half  of  the  time  for  which  he  shall  be  committed.^  And  if  any 
child  shall  be  found  begging  for  alms,  or  soliciting  charity  from  door 
to  door,  or  in  any  street,  highway  or  public  place  of  any  city  or  town, 
any  justice  of  the  peace,  on  complaint  and  proof  thereof,  shall  commit 
such  child  to  the  county  poor  house,  if  there  be  one,  or  to  the  alms 
house,  or  other  place  provided  for  the  support  of  the  poor.* 

^  107.  Every  person  who,  having  his  face  painted,  discolored,  covered 
or  concealed,  or  being  otherwise  disguised,  in  a  manner  calculated  to 
prevent  him  from  being  identified,  shall  appear  in  any  public  highway, 
or  in  any  field,  lot,  wood  or  enclosure,  may  be  pursued  and  arrested 
by  any  sheriff,  deputy  sheriff,  constable,  marshal  of  a  city,  or  other 
public  peace  officer,  or  other  citizen  of  the  county  where  such  person 
or  persons  shall  be  found  disguised  as  aforesaid,  and  who  may,  of  his 

1  1  R.  S.  632,  ^1.  M  R.  S.  632,  ()2.  3  id.  u3. 

2  R.  S.  34,  ^1,  4th  cd.  2  R.  S.  36,  ^2,  4th  ed.  *  Id.  §4. 


54  TIIHIIl  niTIKS  AS  PHACE  OFFICERS, 

own  authority,  aihl  wiihoul  jnocess,  arrest,  seciiro,  and  cmivey  to  any 
magistrate  authurizeil  to  issue  a  warrant  for  the  arrest  of  persons 
chariicd  with  any  olfence,'  rrsidintj  in  the  county  where  such  arrest 
shall  be  made,  any  person  who  shall  be  found  havini;  his  face  painted, 
discolored,  covorctl  or  concealed,  or  being  otherwise  discuised,  as 
aforesaid,  to  be  examined  and  jiroceedcd  against ;  and  it  shall  be  tlie 
duty  of  any  sheritT.  deputy  sheriff,  constable,  marshal  or  other  i)cace 
officer,  whenever  anv  of  them  shall  discover  any  jierson  with  his  face 
so  painted,  discolored,  covered  or  concealed,  or  being  otherwise  dis- 
guised as  aforesaid,  immediately  to  arrest,  secure  and  convey  such 
person  to  any  such  magistrate,  to  be  procceiled  with  according  to  law  ; 
and  whenever  any  such  ofTicer  shall  receive  credible  information  of 
any  i>erson  havini:;  his  face  so  painted,  discolored,  covered  or  concealed, 
or  being  otherwise  disguised  as  aforesaid,  it  shall  be  the  duty  of  every 
such  officer  forthwith  to  pursue  such  person,  and  arrest,  secure  and 
convey  him  to  any  such  magistrate.'^ 

^  108.  In  the  execution  of  the  duties  above  prescribed,  any  shcrilT, 
constable,  marshal,  or  other  peace  oflicer  shall  be  authorized  to  com- 
mand any  male  inhabitant  of  his  county,  or  as  many  as  he  shall  think 
proper,  to  assist  him  in  seizing,  arresting,  confining,  and  conveying  to 
any  such  magistrate,  and  in  committing  to  the  common  jail  of  the 
county,  every  person  with  his  face  so  painted,  discolored,  covered  or 
concealed,  or  being  otherwise  disguised  as  aforesaid  ;  and  any  inhab- 
itant so  commanded,  may  provide  himself,  or  be  provided  with  such 
means  and  weapons  as  the  officer  giving  such  command  shall  desig- 
nate. And  every  person  so  commanded,  who  shall  refuse  or  neglect, 
without  lawful  cause,  to  obey  such  command,  shall  be  deemed  guilty 
of  a  misdemeanor,  and  be  subject  to  a  fine  not  exceeding  fifty  dollars, 
or  to  imprisonment,  not  exceeding  one  year,  or  to  both.' 

^  105>.  Any  magistrate  to  whom  complaint  shall  be  made,  that  any 
person  has  appeared  in  the  public  highway,  or  in  any  lot,  field,  woods, 
f>r  enclosure,  with  his  face  so  ])ainted,  discoloretl,  covered  or  concealed, 
or  bcini;  otherwise  disguised  as  aforesaid,  may,  in  his  discretion,  by 
warrant  under  his  hand,  depute  and  empower  anv  elector  of  the  county, 
to  arrest,  seize,  confine,  and  bi-ing  such  jicrson  before  such  magistrate, 
lo  answer  such  complaint.  And  in  any  such  warnmt,  or  in  any  other 
warrant  or  process  against  any  person  charged  with  having  his  face  so 
paint«'d,  discr>Iored,  covered  or  concealed,  or  being  otherwise  disguised 
as  aforesaid,  whose  name  shall  not  be  known,  it  shall  be  sii(]:(ieiit  to 
describe  the  ofiender  by  some  fictitious  name.' 

'  Ante,  <JM.  >  2  U.  8  30,  </;7,  h,  itl.  .  .1,     «  2  11.  8.  3fi,  (;9. 

J  '1 R.  H.  m  <j</i,  0.  L.iwB  1816,  ch.  'J,  ^<;3,  1.         L.iws  IMO,  ch.  3,  (/t. 

L.1W8  1M5,  ch.  8,  ^/>1,2. 


AND  OX  ARRESTS  FOR  CRI.NfH.  55 

^  110,  \Vli.>n  anv  siicli  person  shall  have  been  arrested  and  brouf^hl 
before  any  jn<lL,'e,  or  other  ofTu-er  authori/.ed  to  issue  process  for  the 
apprehension  ol'  persons  charged  with  any  olfence  of  the  same  county 
where  he  shall  be  arrested,  and  who  shall  not  give  a  good  account  of 
himself,  shall  be  deemed  a  vagrant,  within  the  provisions  of  the  second 
title  of  chai)ter  twenty  of  the  first  part  of  the  Revised  Statutes ;  and, 
on  conviction  by  his  own  confession,  or  by  competent  testimony,  shall 
be  committed  to  and  be  imjirisoncd  in  tlic  county  jail  of  the  county 
where  such  person  shall  be  found,  for  a  term  not  exceeding  six  months.' 

11.    TO    PUCVEN'T  GAMING. 

^111.  On  the  day  of  any  militia  parade  or  rendezvous,  or  of  any 
town  meeting,  or  of  any  annual  or  special  election,  or  on  the  day  of 
the  assembling  of  any  of  the  inhabitants  of  this  state,  to  celebrate  the 
anniversary  of  American  independence,  no  person  shall  expose  to  the 
public,  or  have  in  his  possession,  within  half  a  mile  of  the  place  of  such 
parade,  rendezvous,  town  meeting,  election  or  celebration,  any  eo-table, 
wheel  of  fortune,  or  other  gaming  table,  or  gaming  machine  or  box ; 
and  every  person  ofTending  against  this  provision,  shall  forfeit  twenty- 
five  dollars,  to  be  recovered  by  and  in  the  name  of  the  overseers  of 
the  town  where  the  oflence  was  committed,  for  the  use  of  the  poor. 
And  it  shall  be  the  duty  of  all  sherifis,  and  of  all  other  executives, 
judicial  or  ministerial  officers,  concerned  in  the  administration  of  jus- 
tice, to  break,  burn,  or  otherwise  destroy  every  such  table,  box  and 
machine  so  exposed  or  possessed  contrary  to  the  above  provisions.^ 

^112.  And  if  any  person,  for  gambling  purposes,  shall  keep  or  exhibit 
any  gambling  table,  establishment,  device  or  apparatus,  or  if  any  person 
or  persons  shall  be  guilty  of  dealing  "  faro"  or  banking  for  others  to 
deal  "faro,"  or  acting  as  "look-out"  or  gamekeeper,  for  the  game  of 
♦'  faro,'"  or  any  other  banking  game,  where  money  or  projierty  is 
dependent  on  the  result,  or  if  any  jierson  shall  sell  or  vend  lottery 
policies,  purporting  to  be  governed  by  the  drawing  of  any  public  or 
private  lottery ;  or  if  any  person  shall  endorse  a  book  or  any  other 
document  for  the  purpose  of  enabling  others  to  sell  or  vend  lottery 
policies,  he  shall  be  taken  and  held  as  a  common  gambler,  and  upon 
conviction  thereof,  shall  be  sentenced  to  not  less  than  ten  days  hard 
labor  in  the  penitentiary,  or  not  more  than  two  years  hard  labor  in  the 
state  prison,  and  be  fined  in  any  sum  not  more  than  one  thousand 
dollars,  to  be  paid  into  the  county  treasury  where  such  conviction  shall 
take  place,  for  the  use  of  the  common  schools  therein,  to  be  divided 
among  the  school  districts  in  that  county,  in  the  same  mnnner  as  the 

1  2  R.  S.  36,  ^5,  4th  cd.  2  1  R.  S.  CGI,  <)<)i,b. 

Laws  1845,  ch.  3,  ^)1.  2  Id.  71,  ^<)i.,  6,  4th  cd. 


56  Tiii:iii  i)i:tii:s  as  thaci-:  orriciiits, 

school  monev  of  ihe  state  is  divideil  niiidnt:  said  districts,  and  in  default 
thereof,  shall  remain  imprisoned  until  su<h  fuie  he  renutted  or  paid.' 

^  W'.i.  If  anv  person  shall  keep  a  room,  huildin*;,  nrhor,  hoolh,  shed, 
tenement,  boat  or  nt»at.  to  he  used  or  occupied  for  pandjlin<:,  or  shall 
knowinglv  permit  the  sanie  to  he  used  or  orcu|ned  for  fjamhling.  or 
if  tlie  owner,  superintendent  or  at'enl  of  any  room,  huildinf?,  arbor, 
booth,  shed,  tenement,  boat  or  llo.it.  shall  rent  the  same  to  he  used  or 
occupied  for  <;amblinc:,  he  shall,  on  conviction  thereof,  be  fined  in  any 
sum  not  less  than  fifty,  nor  more  than  five  hundred  dollars.'' 

5  1 1 1.  If  any  commander,  owner,  or  lessee  of  any  boat  or  lloat  shall 
knowingly  permit  any  gambling  for  money  or  j)roperty,  on  such  boat 
or  Hoat,  and  shall  not,  upon  his  knowledge  of  the  fact,  immediately 
prevent  the  same,  he  shall,  upon  conviction  thereof,  be  held  responsible 
for  the  money  or  property  so  lost,  and  fined  in  any  sum,  not  more  than 
five  hundred  dollars.^ 

<5  115.  If  any  person  shall,  through  invitation  or  device,  persuade  or 
prevail  on  any  person  to  visit  any  room,  building,  aritor,  bof»th,  shed, 
tenement,  boat  or  lloat,  kept  for  the  purpose  of  gambling,  he  shall,  upon 
conviction  thereof,  and  upon  proof  that  the  person  so  invited,  has 
gambled  therein,  be  held  responsible  for  the  money  or  property  lost  by 
such  person  so  invited  or  persuaded,  by  reason  of  such  invitation  or 
device,  and  in  addition  thereto,  he  shall  be  fined  and  imprisoned  as 
mentioned  in  the  preceding  section  one  hundred  and  twelve.* 

5  110.  And  every  sheriifor  constable  to  whom  the  warrant  of  any 
magistrate  or  police  justice  of  any  town  or  city,  shall  be  directed  and 
delivered  for  tlie  arrest  of  any  jierson  charged  with  any  ollence  under 
the  statutes  of  this  state  against  gaming,  shall  execute  the  same  accord- 
ing to  the  command  thereof.  And  if  any  such  warrant  shall  show, 
upon  its  face,  that  an  alTidavit  has  been  made  and  filed  with  the  mag- 
istrate issuing  it,  stating  that  the  alliant  has  reason  to  believe  and  does 
believe  that  the  person  against  whom  such  warrant  is  issued,  has  upon 
his  person,  or  at  any  other  i)lacc  named  in  such  allidavit,  and  set  forth 
in  such  warrant,  any  specified  articles  of  personal  jiroj)erty,  or  any 
gaming  table,  device  or  apparatus,  or  any  lottery  policies  public 
or  private,  the  discovery  of  which  might  lead  ti>  establish  the  truth 
of  such  charge  ;  and  if  said  warrant  also  commands  the  otlicer  to 
whom  the  same  is  directed  and  delivered  to  make  diligent  search 
for  such  property  and  table,  device  or  a|)paratus,  and  if  found,  to  bring 
the  same  before  such  magistrate,  it  shall  be  the  <luty  of  such  officer  to 
search  tin-  j>cr»on  of  said   party,  or  the  i»lace  so  designated   in  such 

I  1  R  8  74  <",2a,  Jth  0.1  »  6  n.  8.  70.  (/28,  Jlh  .d.  «  2  11.  H.  70,  (/20. 

Lnw-i  1  KM,  rh.  004,^2.  Lawn  1861,  ch.  60-1,  ^7.  Lnws  IHOl.di.  GOI,  ^5. 

a  2  n.  8.71,  (^'2. 

Laws  1861,  cb.  604,^1. 


AND  ON  ARRESTS  FOR  CRIME.  fw 

wairaut  for  llie  discovery  of  the  jiioperty  so  designated  and  in  the 
execution  of  such  warrant,  the  otiicer  will  have  the  same  jKjwer  and 
authority  as  upon  the  execution  of  a  search  warrant  lor  stolen  or 
embe/./Ied  propertw  It'  the  ollicer  shall  discover  such  i)roperty  he  shal 
seize  and  dehver  the  same  to  the  magistrate  or  justice  before  whom  he 
takes  the  same,  who  shall  retain  possession  of  said  property,  an(J  be 
responsible  therefor  until  the  discharge  or  commitment  or  letting  to  bail 
of  the  person  so  chargeil,  and  in  case  of  such  commitment  or  letting 
to  bail,  such  officer  shall  retain  such  property  subject  to  the  order  of 
the  court  before  which  such  oflender  may  be  retiuired  to  appear,  until 
his  discharge  or  conviction.  And  in  case  of  the  conviction  of  such 
person,  the  gambling  table,  device  or  apparatus  shall  be  destroyed, 
and  the  household  proi)erty  and  other  fixtures  belonging  to  such 
gambling  place  shall  be  held  liable  to  be  sold  to  pay  any  judgment 
and  costs  which  may  be  rendered  against  such  person  ;  and  after  the 
payment  of  such  judgment  and  costs,  the  surplus,  if  any,  shall  be  paid 
into  the  treasury  of  the  county  where  such  prosecution  shall  take 
place,  to  be  divided  among  the  school  districts  of  the  cr)unty,  as  pro- 
vided in  section  one  hundred  and  twelve.  And  in  case  of  the  discharge 
of  such  person  by  the  magistrate  or  court,  the  ofTicer  having  such 
property  in  his  custody,  shall,  on  demand,  deliver  it  to  such  person.' 

^  117.  And  every  sherifl^  or  constable  shall  also  execute  the  warrant 
of  any  justice  of  the  peace,  police  justice,  chief  magistrate  of  any 
municipal  corporation,  or  judge  of  any  court  of  record,  to  whom  the 
same  is  directed  and  delivered,  to  seize  any  gambling  tables,  apparatus, 
establishment  or  device  kept  by  any  person  for  the  purpose  of  being 
used  to  win  or  gain  money  or  other  property,  or  by  any  other  person, 
or  any  lottery  policies  of  any  lotteries  ;  which  warrant,  if  the  same 
so  directs,  will  authorize  such  sheriff  or  constable  within  iiis  proper 
jurisdiction,  after  demanding  entrance,  to  break  open  and  enter  any 
house  or  place  wherein  such  gambling  table,  establishment,  apparatus 
or  device  shall  be  kept,  and  to  deliver  the  same  to  the  mayor  of  the 
city,  president  of  the  village,  supervisor  of  the  town,  or  clerk  of  the 
county  where  such  seizure  shall  be  made,  who  shall  keep  the  same 
until  the  term  of  the  court  at  which  the  case  shall  be  tried,  and  the 
court  shall  then,  if  there  l)e  no  necessity  of  keeping  the  propertv  to  be 
produced  on  the  trial  of  an  offender  against  the  statute,  have  a  jury 
summoned  to  try  the  fact  whether  the  property  taken,  was  or  is  used 
for  gambling,  and  if  the  finding  shall  be  that  the  property  was  used 
for  gambling,  ^he  court  shall  order  such  property  to  be  broken  up  and 
sold  by  the  sheritf  of  the  county,  and  the  proceeds  shall,  after  the  pay- 

i  2  R.  S.  74,  V-4,  4tli  cd. 
Laws  1861,  ch.  504,  \>3. 


58  'rin:iii  Drrics  as  teach  ofi-ichrs, 

nicnl  of  rnsis.  go  into  tlu'  ireasury  of  the  counly/  for  the  use  of  the 
oinninn  schools  thficor.  to  he  chviiled  among  the  distiicls  thcieol  as 
herein  before  mentioned. ' 

^S  118.  It  shall  he  the  duty  of  all  sherills,  jxilice  c.n'u-ers.  constables 
and  prosecuting  or  district  attorneys,  to  inform  against  and  prosecute 
all  persons  whom  they  shall  have  crecUhle  reason  lo  believe  are  olTend- 
ers  anainst  the  provisions  of  the  act  of  1851,  against  gaming,  and 
for  refusal  so  to  do,  they  shall  be  guilty  of  a  misdemeanor,  and  puJi- 
ished  by  a  fine  of  not  more  llian  five  hundred  dollars.^" 

12.    TO    rREVENT    RACING. 

S  ll'.>.  It  shall  be  the  duly  of  all  officers  concerned  in  the  adminis- 
tration of  justice,  to  attend  at  the  place  where  they  shall  know  or  be 
informed  that  any  race  is  about  to  be  run,  contrary  to  the  provisions 
of  law,  and  there  give  notice  of  the  illegality  thereof,  and  endeavor  lo 
prevent  such  race,  by  dispersing  the  persons  collected  for  ihe  purpose 
of  attending  the  same,  and  by  all  other  ways  and  means  in  their  power. 
Upon  their  own  view  of  any  persons  ofl^ending  against  the  provisions 
of  law  against  racing,  as  well  as  upon  the  testimony  of  others,  such 
judges  and  justices  shall  issue  warrants  for  the  immediate  apprehension 
of  the  persons  so  olTending.  to  the  end  that  they  may  be  compelled  to 
enter  into  recogiii/ances  with  sulficient  sureties  for  their  good  behavior, 
and  for  their  appearance  at  some  proper  court  {o  answer  for  said 
offence.* 

\'.i.  Tiii;iii   nuTiES  iXDEii  Tin:  election  laws. 

3  I'JO.  If  anv  person  shall  refuse  to  obey  the  lawful  commands  of 
the  inspectors  (if  elections,  or  by  disorderly  conduct  in  their  presence 
or  hearing,  shall  interrujit  or  disturb  their  proceedings,  they  may  make 
an  order  directing  the  sherilV  or  any  constable  of  the  county,  to  take 
the  j>erson  so  olVcnding  into  custody  and  detain  him  until  the  final  can- 
vass of  the  votes  shall  be  completed  ;  but  such  order  shall  not  pro- 
hibit the  jKTson  so  taken  into  custody  from  voting  at  such  election/ 
And  such  order  shall  be  executed  by  any  sherilfor  (Nonstable  to  whom 
the  same  shall  be  delivered  ;  or  if  none  shall  be  present,  by  any  other 
person  deputed  by  such  board,  in  writing.'  OlHcers  presiding  at  a 
town  meeting  or  election,  are  authorized  to  order  the  removal  of  dis- 
orderly persons  from  the  room  verbally,  and  without  warrant,  and  an 
officer  who  executes  such  verbal  order  is  not  liable  to  an  aotion  therefor/ 

'  2  n  H.  7r,,  (p').  »  2  R   S  :r,  ,-,27    till  ctl.         8  1  R.  f>.  349,  ^n8,4lh  cd. 

»  Anu,  <,112.  •  1  K    ^  T  17  Wind.  6ii'J. 

'J.  U.  .-  -M,  \,:ji),  'lib  cd. 


AND  ON  AIUU:STS  l-'Oll  (JUIMi:.  59 

(5  1131.  It  shall  be  the  tiuty  of  every  iusjiector  ol'  elections,  sherills, 
constahles,  and  justices  of  the  peace,  within  the  state,  knowing'  or 
having  good  reason  to  believe  that  any  of  the  following  ofrences  under 
the  election  law  has  been  committed,  to  give  information  thereof 
to  the  <listrict  attorney  of  the  county,  in  which  the  ollcnce  has 
been  committed,  whose  duty  it  shall  be  to  adopt  cflectual  measures 
for  the  punishment  of  all  jjcrsons  violating  the  jirovisions  oi  said 
law  :' 

1.  That  any  elector  challenged  as  untiualified,  lias  been  guilty  of 
wilful  and  corrupt  false  swearing  or  allirming,  in  inking  any  oath  or 
aflirmation  prescribed  by  the  election  law  v^ 

2.  That  any  person  has  wilfully  and  corruptly  procured  any  pcrs<.n 
to  swear  or  aflirm  falsely  as  aforesaid  :^ 

3.  That  any  ofllccr  on  whom  any  duty  is  enjoined  by  the  election 
laws  of  this  state,  has  been  guilty  of  any  wilful  neglect  of  such  duty, 
or  of  any  corrupt  conduct  in  the  execution  of  the  same :' 

4.  That  any  person  has  by  bribery,  menace  or  other  corrupt  means 
or  device  whatsoever,  either  directly  or  indirectly  attempted  to  influ- 
ence any  elector  of  this  state  in  giving  his  vote  or  ballot;  or  deterred 
liim  from  giving  the  same;  or  disturbed  or  hindered  him  in  the  free 
exercise  of  the  right  of  suflrage,  at  any  election  in  this  state  :^ 

5.  That  any  officer  or  other  person  has  called  out  or  ordered  any 
of  the  militia  of  this  state,  to  appear  and  exercise  on  any  day  during 
any  general  election,  or  within  five  days  previous  thereto,  except  in 
cases  of  invasion  or  insurrection  :® 

6.  That  any  candidate  for  an  elective  ofTice,  or  any  other  person  for 
him,  with  intent  to  promote  his  election,  has  provided  or  furnished 
entertainment  at  his  expense,  to  any  meeting  of  electors  previous  to, 
or  during  the  election  at  which  he  shall  be  a  candidate ;  or  paid  for, 
procured  or  engaged  to  pay  for  any  such  entertainment;  or  furnished 
anv  money  or  other  property  to  any  person  for  the  purpose  of  being 
expended  in  procuring  the  attendance  of  voters  at  the  polls ;  engaged 
to  pay  any  money,  or  deliver  any  property,  or  otherwise  compensate 
any  person  for  i)rocuring  the  attendance  of  voters  at  the  polls  ;  or 
contributed  money  for  any  other  purpose  intended  to  promote  an  elec- 
tion of  anv  particular  person  or  ticket,  excejtt  for  defraying  the  expenses 
of  printing,  and  the  circulation  of  votes,  handbills,  and  other  papers, 
previous  to  any  such  election,  or  for  conveying  sick,  poor  or  infirm 
electors  to  the  polls  :^ 

7.  That  anv  one  has  fraudulently  or  deceitfully  changed  or  altered 

»  1  R.  S.  3G4,  \)U,  -lib  cd.         '  M.  u:J.  ^  Id.  1)6. 

2  Id    362,  ^1.  5  Id.  V)4.  6  Hill,  27. 

3  Id.  ^2.  6  Id.  ()5.  7     "     387. 


(iO  (»F  LliTTINi;  PUISONEUS  TO  IJAIL. 

;i  ballot  of  any  elector,  or  rurnisheil  an  elector  any  ballot  containing 
more  than  the  proper  number  of  names,  or  caused  any  otber  deceit  to 
i>e  practiced,  with  i?jtent  fraudulently  t«)  induce  such  elector  to  deposit 
the  same  as  ins  vote,  and  therel)y  to  have  the  same  thrown  out  and  not 
counted  :' 

8.  That  anyone  has  wilfully  disobeyed  any  lawful  commands  of  the 
board  of  inspectors  of  any  election,  or  has  wilfully,  and  without  lawl'ul 
authority,  obstructed,  hinderctl  or  delayed  any  elector  on  his  way  to  any 
l>oll  where  an  election  was  to  be  held  ;  or  while  he  is  exercising,  or 
attemptinix  to  exercise  the  right  «d"  voting  ;  or  has  aided  or  assisted  in 
such  obstruction  or  delay  :'' 

0.  That  any  person  has  knowingly  voted,  or  otTered  to  vote  in  any 
election  district  in  which  he  docs  not  reside  ;  or  has  voted,  or  ofTered 
to  vote  more  than  once,  either  at  the  same  or  at  any  other  election 
district  :^ 

10.  That  any  person  has  j^rocured.  aided,  assisteil,  counselled  or 
advised  another  to  give  or  oiler  his  vote,  knowing  that  such  jterson  was 
not  duly  qualified  to  vote  at  the  place  where  the  vote  was  given  or 
offered  :* 

11.  That  any  one  has  procured,  aided,  assisted  or  counselled  another 
to  go  into  any  town,  ward  or  election  district,  for  the  purpose  of  giving 
his  vote  at  any  election,  knowing  that  the  i>erson  was  not  duly  qualified 
to  vote  therein  :* 

12.  Or  thai  any  person,  not  duly  <|ualifie<l  to  vote  under  the  laws  of 
this  state,  has  knowinirly  voted,  or  offered  to  vote  at  any  election.' 

CHAPTi:ii  \lll. 

OF  LETTING  PRISONERS  TO  B.VIL. 

S  I'-i'-i.  riie  duties  of  an  ollicer  having  one  in  custody,  upon  any 
criminal  charge,  who  is  entitled  to  be  let  to  bail,  and  who  desires  to 
give  bail,  are  simjily  that  he  take  such  prisoner  before  some  jiroper 
magistrate  or  court  authorized  to  let  to  bail  in  the  particular  case  ;  and 
if  such  court  or  magistrate  shall  take  from  the  prisoner  a  recognizance, 
and  order  him  to  \)c  discharged,  then  that  he  release  him  accordingly. 
And  it  will  be  immaterial  to  the  ollicer  whether  the  recogni/.;ince  so 
taken  is  in  a  sufficient  amount,  or  in  legal  and  proper  form  ;  or  w  hether 
the  sureties  thereto  are  sutfuient  or  otfierwise  competent.  These  arc 
matters  of  which  the  court  or  magistrate  must  judge,  and  with  which 
the  officer  has  nothing  lo  do.  Hut  if  a  justice  assumes  to  let  to  bail 
in  a  case  where   he  has  no  authority  to  act.  the  ollicer  holding  such 

I  1  R.  8.  868,  07,  4lh  H.  »  <J0.  Ja2. 

i(fi.  *«)11  '^la. 


OF  ij:tti.\(J  riMS()Ni:iis  to  i5ail.  ci 

prisoner  should  not  discliar^'o  him.  And  il  he  (hies,  it  ^vill  be  an 
escape,  and  he  shuuUl  retake  him.' 

§  123.  The  magistrate  before  whom  a  prisoner  is  examined  and  hy 
whom  he  is  committed,  is  the  jjrdjter  oflicer  to  let  such  prisoner  to  l)ail. 
But  if  the  magistrate  is  not  authori/.ed  to  take  bail  in  the  f)articular 
case,  then  after  lie  has  made  out  his  warrant  of  commitment,  the  oflicer 
having  the  prisoner  in  charge,  and  to  whom  such  mittimus  is  delivered, 
shall,  if  the  prisoner  so  desire.s,  take  him  before  some  court  or  officer 
authorized  to  let  him  to  bail  in  such  case.  The  proceedings  upon  the 
arrest  and  letting  to  bail  of  one  in  a  county  different  from  that  in  which 
the  warrant  issued,  has  been  already  pointed  out,'^  Where  one  has  been 
arrested  upon  a  bench  warrant,  in  the  county  where  the  warrant  issued^ 
the  oflicer  making  the  arrest  shall  in  like  manner,  take  such  prisoner 
before  the  proper  court  or  magistrate,  if  the  prisoner  desires  to  be 
discharged  on  bail. 

^  124.  Where  any  prisoner  is  so  entitled  to  be  let  to  bail,  il  is  usual 
and  proper  for  the  officer  holding  the  warrant  of  commitment,  or  the 
bench  warrant,  to  allow  the  prisoner  such  time,  as  under  the  circum- 
stances of  the  case,  may  be  deemed  reasonable  and  projier  for  him  to 
obtain  )u-0])er  sureties.  But  if,  at  the  exiiiration  of  such  reasonable 
time,  he  fails  to  obtain  the  refpiired  sureties,  it  will  be  the  duly  of  the 
officer  holding  such  warrant,  to  commit  the  accused  to  prison,  \vhen 
his  duties  under  the  warrant,  unless  he  be  the  sherilT  or  keeper  of  the 
jail,  will  be  at  an  end. 

^  125.  Where  one  has  been  committed  to  jail,  for  want  of  sureties 
to  keep  the  peace,  or,  as  a  disorderly  person,  for  want  of  sureties  for 
good  behavior,  such  person  may  be  discharged  by  any  two  justices  of 
the  peace  of  the  county,  upon  giving  such  sureties  of  the  peace,  or  for 
good  behavior,  as  were  originally  required.^  And  on  such  justices  cer- 
tifying the  fact  of  having  taken  the  proper  sureties,  to  the  jailer, 
and  directing  the  discharge  of  such  prisoner,  he  shall  be  discharged 
accordingly. 

^  12G.  Where  one  under  a  criminal  charge,  is  unable  to  find  the 
required  sureties  before  he  is  actually  committed  to  jail,  it  is  usual  for 
the  committing  magistrate,  or  any  magistrate  before  whom  such 
prisoner  may  have  been  brought  to  be  let  to  bail,  to  take  a  recognizance 
from  him  at  any  time  after  he  has  been  so  committed,  and  thereupon 
such  magistrate  certifies  to  the  jailer  the  fact  of  his  having  taken  such 
recognizance,  and  directs  the  prisoner's  discharge,  as  in  the  case  of 
one  committed   as    a  disorderly  person,  or  for   want  of  sureties  to 

,1  6  Hill,  344.  3  1  R.  s.  G39,  0,6. 

2  Ante,  (^74.  2  R.  S.  54,  ^;6,  4th  ed. 

2  R.  S.  704,  <)6. 

Id.  8S8,  <)6,  4th  cd. 


62  OF  LKTTING  PRISONICRS  TO  IJAIL. 

keep  the  jK-acc'  Hul  win.  re  such  subsetincnl  applicalion  lu  bo  Id  to 
bail,  is  inatie  to  a  tlillcivnl  inagislrate.  such  olUci-r  cannot  act  until  the 
prisoner  shall  have  been  duly  brought  before  iiini.  If  the  i)nsc»ner  is 
connnitted  to,  and  is  actually  in  the  jail,  this  can  only  be  done  upon 
writ  ol'  hafnus  coryjw.?,  duly  granted  and  returnable  before  such  ojlicer  ; 
for  after  one  is  so  coniniitted,  no  olficer  can  order  a  jjrisoner  to  be 
brought  out  of  jail,  except  upon  such  writ.  Hut  the  olUccr  may  go  to 
the  jail,  where  the  prisoner  is  coidined.  and  there  take  the  proper  recog- 
nizance. If  the  apjilication  for  a  discharge  upon  bail  is  made  to  any 
court  authorized  to  let  to  bail  in  the  jjarlicular  case,  such  court  may 
authorize  the  jailer  having  the  prisoner  in  custody,  to  bring  him  before 
such  court,  by  order,  without  writ  of  habeas  corpus.  Where  a 
certiorari  has  been  issued  under  the  statute,  ami  the  oH'icer  or  court 
before  which  the  same  was  made  returnable,  has  by  order,  certified  by 
the  clerk  of  such  court,  or  by  the  officer  granting  the  same,  directed 
the  sum  in  which  such  person  shall  be  held  to  bail,  and  the  court  at 
which  he  shall  be  required  to  appear,  and  that  on  such  bail  being 
entered  into,  such  prisoner  shall  be  discharged;*  upon  the  production 
of  such  order  to  the  county  judge  of  the  county,  he  shall  be  authorized 
to  take  the  recognizance  of  the  person  so  detained,  and  of  two  suliicient 
sureties,  in  the  sum  so  directed,  with  a  condition  for  the  ajipearance  of 
such  person  at  the  court  designated  in  such  order.'  And  such  judge 
shall  certify  on  such  order,  the  comj)!iance  therewith,  and  the  production 
of  the  same,  so  certified,  shall  entitle  such  prisoner  to  be  discharged 
from  imprisonment  for  the  crime  which  shall  have  bien  relurneil  to 
such  certiorari.* 

;5  I'-i?.  The  llevised  Statutes  provide  that  ollicers  before  wlxm  j>er- 
sons  charged  with  crime  shall  be  brought  before  indictment,  shall  have 
power  to  let  to  bail,  as  follows :' 

1.  Justices  of  the  supreme  court,  in  all  cases:* 

!^.  A  judge  to  the  county  courts,  in  all  cases  triable  in  a  court  of  gen-r 
eral  sessi«jns : 

3.  A  justice  of  the  jK-acc  or  alderman  of  a  city  ;  and  the  city  ot  New 
York,  a  special  justice  or  an  assistant  justice,  in  all  cases  ol  misde- 
meanor, ami  in  all  cases  of  felony,  whcie  the  imprisonmt.nt  in  the  state 
prison  cannot  exceed  live  years  : 

1.  'i'hc  police  justices  in  the  city  of  New  York  shall  respectively 
have  {Kjwer  to  let  to  bail,  in  all  cases  where  a  jndge  of  the  court  ol 
general  sessions  in  said  city,  is  authorized  by  law,  to  let  to  bail. 

There  arc  certain  other  oIficer.s,  in  jiarticular  localities,  clothed  with 

«  1  ChlttT'*  Cr.  L.  101.  »  '2  n  S  f.7n/^Rr,.  »  2  II.  B.  710,  ^iiO. 

Ilarl..  Cr.  h.  r,KO.  "I     ttli  .  .1.  M.  8'.t3,()31,  Itli  id. 

2  2  R.  8.  570,  (/>!.  .-..,  •  8  Barb.  102. 

Id.  bO;j,  (;70,  'llhid.  1.      ■.,;.-,  kind. 


OF  U'-TTIXn  PRISOXHRS  TO  HAIL.  03 

some  of  the  powers  of  justices  of  the  supreme  court  nt  rlmiiiljcrs,  or  of 
county  judges,  and  who  of  course  would  he  authorized  to  let  to  hail  in 
the  same  cases,  and  under  the  same  circumstances,  within  their  juris- 
diction, as  such  last  nan)ed  otlicers. 

(S  12S.  The  supreme  court  mav  let  to  hail  in  all  cases.'  The  court 
of  oyer  and  terminer  held  in  any  county,  shall  have  power  to  let  to 
hail,  any  person  committed  before  indictment  found  upon  any  criminal 
charge  whatever."  And  the  court  of  sessions  of  any  county,  shall 
havo  power  to  let  to  bail  ptn-sons  committed  to  the  prison  of  such 
county,  before  indictment  found,  for  any  otFence  triable  in  such.court.^ 
In  addition  to  these  courts,  there  are  certain  others,  in  particular  locali- 
ties, of  limited  jurisdiction,  authorized  to  let  to  bail  in  cases  cognizable 
before  such  last  mentioned  courts. 

(3  12!).  In  the  cases  where  by  law\  persons  indicted  may  be  let  to 
bail  for  their  app.^arance  at  the  court  having  cognizance  of  the  ollence, 
they  may  be  so  let  to  bail  by  the  court  having  jurisdiction  to  try  the 
ollence  charged  ;  or  if  such  court  be  not  sitting,  by  any  justice  of  the 
supreme  court;  and  if  the  otlence  charged  may  be  tried  in  a  court  of 
sessions,  such  persons  may  be  let  to  bail  by  any  judge  of  the  county 
courts  of  the  county  where  such  indictment  was  found  and  by  no  other 
officer.* 

(S  130.  Where  one  convicted  of  crime,  brings  a  writ  of  erroi-,  and 
the  bill  of  exceptions  has  been  settled  and  signed,  if  the  justice  ol  the 
supreme  court,  or  county  judge,  who  presided,  or  any  justice  ot  the 
supreme  court,  shall  certify  on  such  bill,  that  in  his  opinion  there  is 
probable  cause  for  the  same,  or  so  much  doubt  as  to  render  it  expe- 
dient to  take  the  .judgment  of  the  supreme  court  thereon  ;  such  cer- 
tificate on  being  filed  with  the  clerk  of  the  court,  shall  stay  judgment 
on  such  indictment  until  the  decision  of  the  supreme  court  be  had  on 
such  exceptions.^  And  upon  such  certificate  being  granted  in  any  case, 
where  the  oflence  charged  is  punishable  by  imprisonment  in  a" state 
prison,  or  county  jail,  the  court  in  which  the  trial  shall  have  been  had, 
or  any  justice  of  the  supreme  court  may  let  the  defendant  to  bail,  upon 
recognizance  with  sulficient  sureties,  conditioned  that  he  shall  ap]>ear 
in  the  court  where  such  trial  was  had,  at  .such  time  as  the  supreme  court 
shall  direct,  and  that  he  will  obey  any  order  or  judgment  the  supreme 
court  shall  make  in  the  premises.^ 

g  131.  When  any  court  of  oyer  and  terminer,  court  of  sessions  or 
recorder's  court  shall  be  sitting  in  Erie  county,  no  judge  at  chambers 

1  8  Barb  162  *  2  R.  S.  728,  \>>56,  67.  «  2  R.  S.  73G,  (^26. 

2  2  R.  8.  710,  V)30.  M-  '^2,  (fyo^,  60,  4th  cd.  Id.  919,  <j28,  4lh  cd. 

Id.  893,  <\h,  4th  cd.  8  B.irl>.  162. 

3  2  R.  S.  710,  ^31.  «  2  R  S.  736,  <>)23,  24. 

Id.  893,  ^33,  4th  cd.  Id.  919,  ^§25,  26,  4th  cd. 


64  OF  Li-.rriNc  riiiSLJNi:us  to  uwl. 

shall  bo  nuthorized.  willioul  the  written  consent  of  the  district  attorney, 
to  i):iilaiiv  prisoner  in  jail,  or  without  such  (-onsent,  to  hail  any  prison- 
er in  jail,  if  an  application  in  behalf  of  such  prisoner  shall  have  been 
made  to  anv  such  court  for  that  purpose,  and  such  application  shall 
have  been  denied,  or  if  the  parly  shall  have  had  an  opportunity  to 
apply  to  such  court  and  shall  have  neglected  to  make  such  application. 
And  no  person  committed  to  jail  in  said  county,  after  indictment  found 
against  him.  shall  be  adnutted  to  bail  without  the  written  consent  of 
the  district  attorney,  except  by  some  court  liaviuL,'  juris<liction  to  try 
the  olVcnce  charge  I  in  the  indictment,  or  by  a  justice  of  the  supreme 
court,  or  the  county  judge  of  said  county.' 

^  132.  One  let  to  bail  in  a  civil  case,  or  on  a  criminal  charge, 
is,  in  supposition  of  law,  in  the  custody  of  his  sureties,  who  are  con- 
sidered as  his  keepers.  It  is  said  of  them  that  they  have  their  princi- 
pal on  a  string,  and  that  they  may  pull  it  whenever  they  please,  and  so 
surrender  him  in  their  own  discharge.  They  may  seize  or  take  him 
at  any  time,  whether  in  the  day  or  night,  or  upon  Sunday,  and  at  any 
place,  whether  within  the  county  where  let  to  bail,  or  in  another  county, 
or  even  in  another  state  or  country.  It  is  a  contract  between  the 
principal  and  his  sureties,  valid  at  the  common  jaw,  and  the  municipal 
authorities  of  the  slate  where  the  principal  is  seized,  will  not  interfere 
to  release  him,  but  will  rather  promote  his  arrest  by  his  bail.  He  may 
be  retaken  even  in  church,  or  while  he  is  attending  court  as  a  suitor; 
and  his  dwelling  ceases  any  longer  to  be  a  castle  to  him,  even  in  civil 
cases,  for  his  bail  have  as  much  a  right  to  go  into  his  house  as  he  himself, 
and  wheii  they  please  to  take  him,  and  if  entrance  is  refused,  they  may 
break  open  his  doors  to  come  at  him  and  seize  him  even  in  his  bed. 
And  if  the  principal  resides  in  the  houseof  another,  the  bail  may  enter, 
if  the  doors  are  open,  to  seek  for  him  whether  he  is  found  there  or 
not.  And  so  the  executor  or  administrator  (A'  the  bail  inay  in  like 
manner,  surrender  the  principal  of  the  deceased.  In  making  the  arrest 
and  in  surrendering  their  principal,  the  bail  may  cuiiunaMd  the  cooj>e- 
ration  of  the  sherilf  or  any  of  his  ollicers.'^ 

3  \Xi.  Such  bail  may  also  deputize  another  to  seize  the  defendaiil : 
and  such  agent  will  have  the  same  powers  in  respect  thereto  as  the 
bail  ihemselves.^*  And  though  such  agent  may  be  a  public  olHcer.  he 
acts  in  such  case  only  as  the  agent  for  the  bail,  and  not  in  his  ollicial 
capacity  ;  especially  where  the  arrest  is  made  out  of  the  state.  And  it 
has  been  held,  that  where  a  constable  was  so  authorized  to  arrest  a 

'2R.  8.  H'Jl.v^JH,  Jlh  ••.!.  a'JUill/JlH.  3  2  Hill,  1!1S. 

Laws  ItHO,  ch.  1  rj,  V4.  7  J'.lm   1 17;  1  .lohn.  rhAVl.         I  John.  .h.  11.!. 

0  Mo.l   J.!!  ,  'J.  11.  HLirk  IJO       7     "     1  JO. 

1  n.iH.A  I'll).  c.'i.Hi'ick.  law. 

B.irb.  Cr.  L.  OW. 


OF  LETTINr:  PRISOXKRS  TO  I'.AII..  (if) 

prisoner  for  the  hail,  that  a  note  or  agreement  conditioned  that  such 
prisoner  should  ajipear  at  the  next  term  of  the  court  where  he  had 
been  recognized  to  appear,  taken  by  such  constable  of  the  party  whom 
he  arrested  in  Virginia,  was  not  within  the  statute  against  the  taking  of 
securities  colore  officii  by  a  public  olllcer,  and  that  such  constable  might, 
on  default  of  the  defendant  to  appear,  recover  on  such  security.' 

§  131.  The  proi)er  mode  of  proceeding  by  bail  in  a  criminal  case, 
where  they  seek  to  surrender  their  principal,  is  to  procure  a  copy  of 
the  recognizance  from  the  clerk  of  the  court  with  which  the  same  is 
fded,  duly  certified  by  such  clerk.  If  an  agent  is  appointed  by  such 
bail  to  make  the  arrest,  his  ajipointment  and  authority'  should  be  in 
writing,  endorsed  upon  such  certified  copy  of  recognizance,  or  annexed 
to  it,'^ under  the  hand  of  such  bail.  And  when  the  arrest  is  iii:;de,  the 
prisoner  should  be  forthwith  brought  before  the  court  which  took  such 
recognizance,  or  before  which  he  was  recognized  to  appear,  if  such 
court  be  in  session,  when  he  may  be  surrendered  into  custody,  and,  in 
in  a  proper  case,  the  bail  will  be  discharged.  If  he  was  let  to  bail  by 
a  magistrate,  he  should  be  brought  before  such  magistrate,  who  shall 
commit  him  to  the  jail  of  the  county,  as  upon  the  original  examination. 
If  such  court  is  not  in  session,  or  the  magistrate  who  took  the  recog- 
nizance cannot  be  found,  or  has  gone  out  of  office,  or  does  not  reside 
in  the  county  where  the  prisoner  was  recognized  to  appear,  such  bail 
shall,  by  endorsement  upon  such  copy  of  recognizance,  certify  that  they 
have  so  arrested  such  prisoner  as  such  bail,  and  that  they  thereby 
surrender  him  into  the  custody  of  the  keeper  of  the  common  jail  of 
the  county,  to  be  released  from  such  recognizance  ;  and  such  certified 
copy  of  recognizance,  with  such  certificate  of  the  bail,  thereon  endorsed, 
will  be  sufiicient  authority  to  the  keeper  of  said  jail,  to  hold  the  said 
prisoner  until  he  is  again  let  to  bail  or  otherwise  discharged  from 
custody. 

CHAPTER  IX. 

OF  THEIR  DUTIES  IX  COURTS  OF  SPECLiL  SESSIONS. 

§  135.  No  duty  is  imposed  by  law  upon  sheriffs  requiring  their 
attendance  u]ion  courts  of  special  sessions,  when  held  by  a  sin^rle 
magistrate.  But  where  any  sherifT  has  arrested  a  criminal  upon  a 
charge  which  may  be  tried  before  any  court  of  special  sessions,  and 
the  prisoner  shall  elect  to  be  tried  by  such  court,  the  duties  of  such 
sheriff,  so  holding  the  prisoner,  as  to  bringing  him  before  the  court,  and 
detaining  him  in  custody  during  the  trial,  are  the  same  as  those  of  any 
constable,  to  be  hereafter  mentioned  ;  while  they  have  the  same  power 

1  2  Hill,  218. 

10 


60  oi-  Tiii:iii  DiTiHs  IN  cDriri's 

as  constables  h\  tin*  exenition  of  the  judgments  of  such  courts  in   all 
cases. 

(5  l'{«5.  Whenever  n  prisoner  is  brought  by  an  olhcer  before  a 
mngistrate,  and  is  charged  with  any  oflence  triable  by  such  magistrate, 
sitting  .IS  a  court  of  special  sessions,  he  may  elect  to  be  trie<l  by  such 
court,  or  he  may  give  bail  to  aj)pearat  the  next  criminal  court  having 
jurisdiction  of  the  otTence.  If  he  elects  to  give  bail,  he  has  twenty- 
four  hours  after  being  thereto  required,  to  give  such  bail.' 

i5  137.  During  the  twenty-four  hours  allowed  such  person  to  give 
bail,  and  during  the  lime  which  shall  elapse  between  the  calling  any 
court  of  special  sessions,  and  the  convening  of  such  court,  the  person 
charged  may  be  committed  to  jail  for  safe  keeping,  or  he  shall  continue 
in  the  custody  of  the  officer  arresting  him,  as  the  magistrate  issuing 
the  warrant  of  arrest  shall  direct ;  and  after  the  court  of  special  sessions 
shall  have  convened,  the  prisoner  charged  shall  be  brought  before  such 
court,  and  shall  continue  in  the  custody  of  the  oflicer  having  him  in 
charge,  until  the  termination  of  the  proceedings  of  the  court.'^ 

^  J  38.  If  the  prisoner  shall  elect  to  be  tried  by  a  jury,  the  justice 
composing  the  court  shall  issue  a  venire,  directed  to  any  constable  of 
the  county,  or  marshal  of  the  city  where  the  oll'ence  is  to  be  tried, 
commanding  him  to  summon  twelve  good  and  lawful  men,  f]ualified  to 
serve  as  jurors,  and  not  exempt  from  such  service  by  law,  and  who 
shall  be  in  no  wise  of  kin  either  to  the  complainant  or  defendant,  to  be 
and  appear  before  such  court,  at  a  time  not  more  than  three  days  from 
the  date  of  the  venire,  and  at  a  place  to  be  named  therein,  to  make  a 
jurv  for  the  trial  of  such  ollence.'  The  officer  to  whom  such  venire 
shall  be  delivered,  shall  execute  the  same  fairly  and  impartially,  and 
shall  not  summon  any  person  whom  he  shall  suspect  to  be  biased  or 
prejudiced  for  or  against  the  defendant.  He  shall  summon  the  jurors 
personally,  and  shall  make  a  list  of  the  jiersons  summoned,  which  he 
shall  certify  and  annex  to  the  venire,  and  return  with  it  to  the  court.^ 
If  a  sufficient  number  of  competent  jurors  shall  not  be  drawn,  the  court 
may  suj>ply  the  deficiency  by  directing  the  constable  to  summon  any 
of  the  bystanders  or  others,  who  may  be  cfjmj'ctent,  and  against  whom 
no  cause  of  challenge  shall  apjjcar,  to  act  as  jurors  in  the  case.*  If  the 
officer  to  whoifi  the  venire  shall  have  bem  (k-livered.  shall  not  return 
the  same  a«  thereby  re(pnred,  the  com  t  shall  issue  a  new  venire,  upon 
which  the  same  proceedings  shall  be  had,  as  upon  the  first  venire." 

^  139.  The  names  of  the  persons  so  returned,  sh.dl  be  resj)ectively 
written  on  several  and  distinct  pieces  of  paper,  as  nearly  of  one  size 

«2R.  8.  711,^.  »2U.  H  71'2,  C)0.  «  2  R.  S.  713.  <;1.3. 

M    8&7,  ^3,  4lh  r.l  M  K»7,./..,  .Jihcd.                  M  H'.tH,  ^;l:{,  4(h  c(l. 

«  2  R   8.  712,  ^.  ♦  2  U   S  71.{,  ^ID.  •  2  K.  H.  713,  ^14. 

Id  By7,  ^,  4lh  Cil  Id.  HW,  <,U),  llh  c.l..                Id.  bW,  ()U,  4tli  cd. 


OF  SIM':CIAL  SKSSIONS.  (',7 

as  may  he  ;  and  the  oIlicLT  Itv  whom  the  venire  was  served,  in  the 
presence  of  the  court,  shall  roll  up  or  fold  such  j»ieces  of  paper,  aw 
nearly  as  may  he  in  the  same  manner,  and  put  them  together,  in  a  hox 
or  other  convenient  thing.'  The  court  shall  then  draw  six  of  such 
papers,  one  after  another,  and  if  any  of  the  persons  whose  names  shall 
be  so  drawn,  shall  not  appear,  or  appearing,  shall  be  challenged  and 
set  aside,  then  such  further  number  shall  be  drawn,  as  will  be  sufficient 
to  make  up  the  number  of  six,  after  all  legal  causes  of  challenge  shall 
have  been  allowed.* 

^  140.  After  hearing  the  proofs  and  allegations,  the  jury  shall  be 
kept  together  in  some  convenient  place,  until  they  agree  upon  a  verdict 
or  are  discharged  by  the  court ;  and  a  constable  or  marshal  shall  be 
sworn,  to  attend  upon  the  jury,  in  like  manner  as  upon  trials  in  justices' 
courts.^ 

^  141.  Whenever  adefendant  tried  as  aforesaid,  either  by  the  <-<»urL 
or  by  a  jury,  sirall  be  convicled,  the  court  shall  render  judgment  there- 
upon, and  inflict  such  punishment  by  fine  or  imprisonment,  or  both,  as 
tiie  nature  of  the  case  may  require  ;  but  such  fine  shall  in  no  case 
exceed  fifty  dollars,  nor  such  imprisonment  six  months.^ 

^  142.  Whenever  a  magistrate  or  jury  before  whom  a  criminal  cause 
shall  be  tried  as  aforesaid,  shall  be  satisfied,  from  the  evidence  and  pro- 
ceedings had  before  them,  that  the  person  or  persons  charged  and 
tried,  were  complained  of  and  proceeded  against  without  probable 
cause,  and  with  malicious  intent  to  injure  or  harrass,  they  may  render 
a  verdict  for  costs  against  the  complainant ;  whereupon  the  magistrate 
shall  enter  judgment  for  the  amount  of  such  costs,  upon  which  an  exe- 
cution may  issue  against  the  property  or  person  of  such  complainant, 
in  the  same  manner  as  upon  a  judgment  rendered  for  tort  by  a  justice 
of  the  peace.^ 

i5  143.  The  sheriff'  of  the  city  and  county  of  New  York  shall  exe- 
cute the  judgments  and  orders  of  the  court  of  special  sessions  of  the 
peace  of  said  city  and  county,  by  virtue  of  a  warrant  under  the  hand 
and  seal  of  the  first  judge,  mayor,  or  recorder,  who  presided ;  or  of 
the  persons  who  formed  such  court.*  And  whenever  sentence  shall 
be  pronounced  upon  any  person  convicted  of  any  offence  in  the  court 
of  special  sessions  in  the  city  and  county  of  New  York,  the  clerk 
thereof  shall,  as  soon  may  be,  make  out  and  deliver  to  the  sheriff"  of 
the  said  city  and  county,  or  his  deputy,  a  transcript  of  the  entry  of 
such  conviction  in  the  minutes  of  the  said  court,  and  t)f  the  sentence 

1  2  R.  S.  713,  ^>11.  3  2  R.  8.  713,  <)17.  s  2  R.  S.  899,  ^22,  4th  cd. 

Id.  S9S,  ^11,  4th  ed.  Id.  WS,  ()17,  4th  ed.  Laws  1845,  ch.  180,  ()16. 

2  2  R.  S.  713,  \)12.  <  2  R.  S.  714,  ^19.  «  2  R.  S.  224,  v>2. 

Id.  898,  <jl2,  4th  ed.  Id.  S'JS,  ^19,  4th  ed.  Id.  424,  ^2,  4th  ed. 


6S  i>F  Tiii:iii  in'riiis  in  I'oiiiTs 

thereupon,  duly  certified  l»y  the  said  clerk  :  wliicli  shall  he  sidlicient 
iuJllK»riiy  tu  such  shcrilV  or  ileputy  to  execute  such  sentence,  and  he 
shall  execute  the  same  accordingly.' 

i5  IM.  The  judi^nients  and  orders  ol"  the  court  oi  special  sessions  ot 
the  city  of  Alhany  shall  bo  executed  hy  the  sherilV  of  the  county,  or 
by  any  conslahle  of  the  city,  lo  whom  a  transcript  of  such  judgment 
or  order  dulv  certifictl  hy  the  clerk  of  said  court  shall  he  delivered: 
and  such  transcript  so  certified  shall  he  sullicienl  authority  to  such  sherilf 
or  other  oflicer  to  execute  such  sentence,  and  he  shall  execute  the  same 
accordingly.' 

5  Mo.  The  judgment  of  every  court  of  sj)ccial  sessions,  excej)t  in 
the  cities  of  New  York  and  Albany,  shall  be  executed  hy  the  sherifl', 
constables  and  marshals  of  the  county,  or  city  and  county,  in  which 
the  conviction  shall  be  had,  hy  virtue  of  a  warrant  under  the  hand  of 
the  magistrate  or  magistrates  who  held  the  court,  or  of  a  majority  of 
them,  to  be  directed  to  such  ofiicers,  or  to  such  of  them  as  may  be 
necessary,  and  specifying  the  particulars  of  such  judgment.^  Bui  to 
authorize  any  such  olliccr  to  execute  the  warrant  of  commitment  of 
such  court,  it  must  be  directed  to  such  ollicer,  or  to  the  class  of  ofticers 
to  which  such  ollicer  belongs,  and  if  not,  it  is  void  and  will  aflord  no 
protection  to  a  constable  or  other  ollicer  who  executes  it.* 

3  1 10.  All  fines  imposed  by  the  court  of  special  sessions  of  the  city 
and  county  of  Albany,  shall  be  paid  to  the  clerk,  or  to  the  sherifT  of 
the  said  city  and  county,  who  shall  within  ten  days  after  the  receipt 
thereof,  pay  the  same  to  the  chamberlain  of  the  said  city,  in  the  same 
manner  and  subject  to  the  same  penalties  for  neglect,  as  provided  in 
respect  to  fines  imposed  hy  courts  of  general  sessions."  All  fines 
imposed  by  the  court  of  special  .sessions  in  the  city  and  county  of  New 
York,  shall  be  received  by  the  sherilf  of  the  said  city  and  county,  who 
shall  within  thirty  days  after  the  receijit  thereof,  pay  the  same  to  the 
treasurer  of  the  said  city,  in  the  same  manner  and  under  the  same 
requirements,  as  fines  received  by  the  .said  sherilf  that  are  imposed  by 
the  general  sessions  of  the  said  city  and  county."  If  the  defendant  be 
committed  by  the  judgment  of  any  court  of  special  sessions  of  any  of 
the  other  counties  of  this  state,  i)ayment  of  any  fine  imposed  upon 
guch  per-^on,  shall  be  made  to  the  sherilf  of  the  county,  who  shall, 
within  thirty  days  after  the  receipt  of  any  such  fine  i)ay  over  the 
amount  received  by  him  to  the  county  treasurer.' 

^  1  17.  On  a  warrant  from  the  court  of  sjteciid  sessions  in  Albany 
county,  against  one  recognized  to  apj)ear,  but  who  has  lailcd  to  do  so, 

I  2Tt   '^  '->"  '-3,  4ih  r<I.       »2R.  p.  710,  C)P.l.  •  2  R.  8.  001,  (;34. 

I                      '   i'l//).              M   ••111, '/'.i;,  nil  c(l.  L.1WK  ISHO,  ch.42,  ^0. 

3  2  1.                  i:j,  Kln.l.        *  f,  M.iTh.  u:,\.  "J  2  U.  S.  71<i,  <>a3. 

Law*  i04i»,  cb.  160,  ^7.        »  2  U.  H  Vir,,  <,].\,  4Ui  cil.  M.  W1,^:]H,  -Ith  cd. 
Laws  IbVJ,  cb.  IW,  ^b. 


Tiiiiiii  i)irrii:s  i\  coihits  ok  rkcokd.  g9 

the  o/licer  to  whom  it  is  delivered  shall  bring  the  party  forthwith  before 
the  court,  if  in  session,  at  the  time  of  such  arrest,  and  if  not,  to  com- 
mit him  to  jail,  there  to  remain  till  delivered  hy  due  course  of  law.' 

CITAl'TKIl  X. 
Tin: I II  DUTIES  IN  COURTS  OF  RECORD. 

§  148.  Sherilfs  are  oflicers  of  the  courts  of  record  held  in  their 
respective  counties  ;  and  it  is  their  duty  to  attend  in  person,  the  sittings 
of  every  such  court.  It  is  also  made  their  duty,  in  case  of  neglect  on 
the  part  of  the  board  of  supervisors  so  to  do,  to  provide,  under  the 
order  thereof,  every  court  of  appeals  held  in  their  county,  supreme 
court,  circuit  court,  and  court  of  oyer  and  terminer,  proper  and  con- 
venient rooms  for  the  holding  such  courts,  (and  in  the  case  of  the  court 
of  appeals,  with  a  room  for  the  consultation  of  the  judges,'^)  and  also 
with  furniture,  attendants,  fuel,  lights  and  stationery,  suitable  and 
suflicient  for  the  transaction  of  its  business.  The  expense  incurred  by 
them  in  carrying  out  such  order  of  any  court  is  made  a  county  charge.^ 
The  foregoing  provisions  of  the  twenty-eighth  section  of  the  code  are 
made  aj^plicable  to  the  court  of  common  pleas,  and  the  superior  and 
marine  court  of  the  city  and  county  of  New  York  ;  but  it  is  declared 
that  the  said  courts  shall  appoint  the  officers  necessary  to  attend  said 
courts,  whose  salaries  shall  be  fixed  by  the  board  of  supervisors.^  And 
in  case  of  failure  of  the  supervisors  of  Erie  county  to  provide  and  fur- 
nish rooms  for  holding  the  superior  court  in  the  city  of  Buffalo,  and 
for  the  clerk  thereof,  said  court  may,  by  order,  direct  such  ])erson  or 
persons  as  shall  be  named  in  such  order,  to  provide  such  rooms  and 
furniture  at  the  expense  of  the  county.^ 

^  149.  It  is  also  made  the  duty  of  every  sherilV  to  summon  two 
constables  to  attend  with  him,  every  term  of  the  court  of  appeals,  and 
of  the  supreme  court  held  in  his  county  ;*  and  also  within  a  reasonable 
time  before  the  sitting  of  any  circuit  court,  sittings,  court  of  oyer  and 
terminer,  county  court  or  court  of  sessions,  and  the  city  court  of 
Brooklyn/  so  many  constables  and  marshals  as  the  jiresiding  judge 
shall  direct,  and  in  case  of  his  lailure  to  do  so,  the  sherifl' shall  summon 
so  many  as  he  may  deem  necessary.'  Every  marshal  or  constable  so 
summoned,  shall  attend  the  sittings  of  such  court  upon  pain  of  being 
fined   for  every  days  neglect,  a  sum  not  exceeding  five  dollars.'     If 

1  Laws  1S50,  p.  402,  <)l.  «  2  R.  S.  197,  ()1.  s  o  r   g  ogo,  (^383.  4. 

2  Code,  <)lo.  M.  ?.G2,  <^A,  4th  cd.  Id.  476,  <;»70,  71,  4th  ed. 

3  Code,  V|(328,  51.  Laws  1847,  ch.  429,  \)1.        »  2  R.  S.  289,  (\So. 

*  Laws  1853,  ch.  529,  ^1.        '  2  R.  S.  407,  <)U0,  4th  cd.        Id.  470,  ^72',  4th  ed. 
5  Laws  1854,  ch.  9G,  ^oO.  Laws  1850,  102,  <)7. 


70  Tm:iii  nr'rii:s  in  conn's  ok  kf.coud. 

more  assistance  is  nocfssiuy  t<»  (lisi-li;ni,'o  the  duties  imiuised  upon  such 
persons,  the  sherilV  may,  muler  the  order  of  the  court,  provide  it. 

^  150.  It  is  the  duty  of  the  shcrilT  to  maintain  order  in  everv  such 
court,  during  the  silting  thereof,  and  l(»  obey  the  orders  and  direction 
of  the  court,  and  to  execute  its  orders  and  process.  It  is  his  duly  also 
to  see  that  the  constables,  marshals,  and  other  persons  he  may  have 
summoned  or  employed  to  attend  said  court,  discharge  their  respective 
duties  promptly  and  projierly. 

5  1«'»1.  It  shall  also  be  the  duty  of  every  sherilV,  (Icjtiily  slierilV  ;ind 
constable,  attending  any  court  in  the  state,  where  the  services  of  a 
crier  shall  be  rerpiired,  (except  the  court  of  common  pleas,  and  the 
superior  court  of  the  city  and  county  (»fNe\v  York,'  and  the  sujierior 
court  of  the  city  of  BulValo,'^  for  which  criers  shall  be  appointed,)  to 
act  as  such  crier ;  and  no  fees  or  comi>ensation  shall  l>e  allowed  to 
any  oflicer  or  other  person  for  acting  as  crier  of  any  court  in  this 
state,  except  in  the  courts  above  mentioned.^ 

^  iri2.  The  sherilV shall  receive  no  compensation  lor  attending  the 
court  of  appeals  or  the  supreme  court;  but  he  is  entitled  to  the  same 
compensation  for  attending  the  recorder's  court  of  the  city  of  Utica,* 
and  the  city  court  of  the  city  of  Brooklyn  as  constables.^ 

^  153.  The  district  attorney  of  every  county,  at  least  tweniv  days, 
before  the  time  appointed  for  hohling  any  court  of  oyer  and  terminer 
and  jail  delivery,  in  his  county,  shall  issue  a  jirecept  to  be  tested  and 
sealed,  in  the  same  manner  as  jirocess  issued  out  of  the  court  of  oyer 
and  terminer  and  jail  delivery,  and  to  be  directed  to  the  sherilF  of  his 
county.*  Every  such  ])recept  shall  mention  the  time  and  [ilace  at 
which  such  court  is  to  be  held,  and  shall  connnand  the  said  sheritf, 

1.  To  summon  the  several  persons  who  shall  have  been  drawn  in  his 
county,  pursuant  to  law,  to  serve  as  grand  and  petit  Jur<»rs  at  the  said 
court,  to  aj)pear  thereat : 

'2.  To  bring  before  the  said  court,  all  j)risoncrs  then  being  in  the 
jail  of  such  county,  together  with  all  process  and  proceedings  any 
way  concerning  them  in  his  hands  as  such  sherifl': 

',i.  To  make  j»roflaination  in  the  manner  jirescribcd  by  law,  notifying 
all  persons  bound  to  appear  at  the  said  courl.  by  recognizance  or 
otherwise',  to  appear  thereat  ;  and  re(|uiring  all  justices  of  the  peace, 
coroners,  and  other  ollicers  who  have  taken  any  recogni/.ance  for  the 
ap|)earance  of  any  person  at  such  court,  or  who  have  taken  any  \n(\u'\- 
sitioD,  or  the  examination  of  any   j)risr»ner  or  witness,  to  return  such 

«  Code,  (,80.  *  2  n  H.  10.3.  ^01,  nil  I'd.       •  2  n.  8.  20fi,  (,^7. 

»  L.-i"     '-''   ■'■     '     '  '■■     "•"   •'■   ■■'"  '"*  M.  .'!7y,  V'J'J,  Ith  c(l. 

S'JIl  1. 

I.^  .  '  ■  .  ■.'• 


TIIHIIl  ni'TIl-.S  IX  COUIITS  f)l'  RKCOIU).  71 

rocofjnizances,  iiKiuisilions  and  examinations  lu  tin;  said    court,  at  tin- 
openin;:^  thereof,  on  tlu;  day  ol"  sittiuL^s. ' 

And  the  slierill'  to  wlioui  any  such  precept  shall  he  directed  and 
delivered,  immediately  on  liie  receipt  thereof,  shall  cause  i)roclamation 
in  conformity  thereto,  signed  hy  him,  to  he  puhlishcd  once  in  each 
week,  until  tlie  sitting  of  the  court,  in  one  or  more  of  the  newspapers 
printed  in  the  said  county,  and  the  expense  thereof  is  made  a  county 
charge.^ 

(5  154.  It  has  been  lately  held  in  one  district,  under  peculiar  circum- 
stances, that  the  above  mentioned  precept  is  jury  process  ;  and  that  it 
must  be  returned  to  the  court,  and  fi\ed  with  the  clerk  thereof,  upon 
opening  of  the  court,  with  the  return  of  the  sheriff  of  his  doings  there- 
under, endorsed  thereon.  This  would  require  the  sheriff  to  have  in 
court,  at  the  opening  thereof,  all  the  prisoners  then  in  jail  ;  for  until  he 
has  so  done,  he  cannot  make  a  full  return  to  such  precept.  The  prac- 
tice hitherto  has  been  to  bring  into  court  the  prisoners  in  jail,  as  they 
were  required  to  jjlead  to  the  indictment,  enter  into  recognizance  for 
their  ajjpearance,  to  be  tried,  or  to  receive  sentence  ;  and  it  would 
seem  that  this  course  should  be  still  pursued,  or  at  least  until  the  proper 
courts  direct  otherwise,  as  the  other  course  would  be  imposing  an 
onerous  duty  upon  the  sheriff,  and  expense  upon  the  county,  and  would 
subserve  no  useful  purpose.  In  such  case  the  sheriff  should  make 
return  to  the  precept  of  all  that  he  has  done  under  it,  and  as  to  the 
prisoners,  if  there  be  any  in  jail,  he  may  add  that  he  "is  ready  to  bring 
them  before  the  court  as  it  may  direct." 

g  155.  It  shall  be  the  duty  of  the  keeper  of  every  county  prison,  to 
present  to  every  court  of  oyer  and  terminer,  and  to  every  court  of 
sessions  to  be  held  in  his  county,  at  the  opening  of  such  court,  a 
calendar  stating, 

1.  The  name  of  every  prisoner  then  detained  in  such  prison  : 

2.  The  time  when  such  prisoner  was  committed  ;  and  by  virtue  of 
what  process  or  precept :  and, 

3.  The  cause  of  the  detention  of  every  such  person  :^ 

4.  And  to  every  court  of  sessions,  on  the  first  day  of  its  meeting, 
next  after  the  commitment  of  any  disorderly  person,  a  list  of  the  per- 
sons so  committed  and  then  in  his  custody,  with  the  nature  of  their 
offences,  the  name  of  the  justice  committing  them,  and  the  time  of 
imprisonment  :* 

5.  And  also  in  like  manner  to  every  such  last  mentioned  court,  the 
names  of  all  persons  committed  to  and  then  in  jail  for  want  of  sureties 
to  keep  the  peace. 

>  2R.  S.  206,  (,38.  «  2  R.  S.  206,  <339.  3  2  R.  S.  944,  ^25,  4th  cd. 

Id.  379,  ^23,  4th  ed.  Id.  370,  <j24,  4th  cd.  <  1  R.  S.  639,  ^7. 

2R.S.  54,^7,  4th  cd. 


/•^ 


Tm:iii  I)i:tii:s  in  courts  or  uiicoiu). 


.5  1 JJJ.  No  mand  juror.  c<»iistal)l(\  tlistrirl  attorney,  clerk,  or  judtrc  of 
any  court,  shall  disclose  tlio  fact  of  any  iiulirtinenl  haviuLj  l)con  found 
ngninslany  person  for  a  felony,  who  is  not  in  actual  confinomont,  until 
he  shall  have  been  arrested,  and  every  person  violatintr  this  provision 
shall  be  deemed  guilty  of  a  misdemeanor.'  Hut  this  does  not  extend 
to  any  district  attorney,  sherill'  or  other  ollicer,  making  any  surh 
disclosure  by  the  issuing,  or  in  the  exeeulion  of  any  process  on  sueh 
indictment,  or  in  any  other  way  when  it  sli.ill  heroine  m-cessary  in  the 
discharge  of  any  olFicial  duty." 

'^  ir>7.  Within  ten  days  after  the  adjournment  of  any  eriminal  court 

of  record  of  any  county ;  and  within  thirty  days  after  the  adjournment 

of  the  court  of  special  sessions,  held  in  the  cities  of  New  York,  Hudson. 

Schenectadv,  Troy  and  Ulica ;  the  mayor's  court  held  in  the  city  of 

Albanv  ;  the  mayor's  court,  or  any  criminal  court  held  in  llo(;hcster ;  or 

any  criminal  court  held  in  the  cities  of  Brooklyn  or  liulValo,  the  sheritr 

of  the  counts  in  which  such  court  shall  have  been  held,  resjiectively,  shall 

report  by  mail  to  the  secretary  of  state,  the  name,  occupation,  age,  sex 

and  native  country  of  every  person  convicted  at  such  court,  of  any 

offence,  the  degree  of  instruction  which  each  person  so  convicted  has 

received,  and  all  such  other  items  of  information  in  relation  to  such 

convicts,  and  their  oflences,  as  their  secretary  of  state  shall  recpiire : 

which  reports  shall  be  made  in  such  form  as  the  said  secretan-  shall 

prescribe.     And  to  enable  such  .^herifl'  to  make  such  returns,  they  shall 

be  authorized  by  themselves  and  their  deputies,  to  make  all  neces.sary 

inquiries  of  the  persons  convicted,  before  or  after  trial,  and  of  the  keepers 

of  jails,  penitentiaries,  or  other  places  where  such  convicts  may  be 

confined,  and  of  all  other  jtcrsons  ;  and  all  justices  or  other  judicial 

officers  before  whom  any  person  shall  have  been  convicted  of  a  criminal 

offence,  other  than  in  courts  of  record,  shall,  on  being  required  by  the 

sheriffs  of  the  respective  counties,  furnish  to  them  all  the  information 

they  can  obtain,  to  enable  such  sheriffs  to  comply  with  the  provisions 

of  the  statute  relating  to  reports  of  convictions  in  other  than  courts  of 

record,  and  j^hall  make  such  incpiiries  of  the  persons  convieted   before 

lhcn>.  and  of  others  as  the  said  secretary  shall   direct.     And  on  the 

failure  of  any  sheriff,  or  any  such  justice  or  judicial  offn-er  to  comply 

with   any  of  the  foregoing  provisions,  the   ollicer   .so  oH'cnding  shall 

forfeit  fiflv  dollars  to  the  use  of  the  peoi)le  of  this  state.     For  their 

ser\'ices,  such  sheriffs  shall  be  allowed  a  reasonable  sum  by  the  board  of 

supervisors  of  their  respective  counties,  as  a  coun^*  charge.' 

■^  l.'S.  The  secretary  of  state  has  given  certain  instructions  under 

•  ••  i;  H  720  ()V.i  «  2  n.  K.  720.  (,I0.  »  2  U.  S.  9^2,  v/>00,58,  Jth  o<l. 

hi 'Jlo'iyi'J,  4Ui  Ci\.  I«l-  I'lO,  <yM,  4111  ed.  Laws  183'J.  cli.  269,  ^<)i,b,  0. 


DRAWING  AND  SUMMONING  JURORS.  73 

the  provisions  of  the  sf;itiite,  cMubodicd  in  the  foregoin<,' section,  lor  the 
guidance  of  the  sherill",  and  recjuircs  that  ollicer  to  report :' 

1.  The  name  of  the  convict,  and  if  he  has  two  <jr  more,  he  shall 
stale  them  : 

2.  The  crime  of  which  he  was  convicted,  such  as  l.irccny,  rol»l)er\ . 
&c.,  in  general  terms : 

3.  His  occu])ation,  whether  he  be  a  mariner,  tradesman,  hlacksmitii. 
merchant,  lawyer,  and  the  like  : 

4.  Age  at  the  time  of  conviction,  and  sex  : 

5.  Whether  he  is  married  or  single : 
G.  Ilis  native  country  : 

7.  The  degree  of  instruction  he  has  received ;  whether  he  can  read 
or  write  ;  whether  he  can  read  only,  or  whether  he  be  ignorant  and 
entirely  uneducated ;  what  opportunities  he  has  had  of  religious 
instruction  : 

8.  Whether  his  parents  or  either  of  them  are  living,  and  which  of 
them : 

9.  Whether  he  has  formerly  been  imprisoned  for  any  offence,  and 
if  so,  state  what  it  was  : 

10.  His  habits  in  respect  to  the  immoderate  use  of  lirpior  : 

11.  Any  other  fact  or  circumstance  in  his  condition,  habits,  or  cir- 
cumstances, that  the  sheriff  may  deem  useful  to  communicate. 

The  return  of  convictions  in  a  court  of  record  must  be  made  by  the 
sheriff,  within  ten  days  after  the  adjournment  of  such  court ;  and  in  the 
cases  where  any  sheriff  is  required  to  report  convictions  in  courts  of 
special  sessions,  within  thirty  days  after  the  adjournment  of  such  courts 
of  special  sessions.  The  facts  to  be  reported  in  both  cases  will  be 
precisely  similar,  and  the  reports  will  only  differ  in  the  description  of 
the  court.  The  report  should  be  signed  by  the  sheriff,  in  bis  official 
character,  and  dated  at  the  time  of  signature.  The  secretary  of  state 
has  also  given  the  form  of  the  reports,  which  will  be  found  among  the 
forms.  The  report  may  be  in  a  continuous  form  wlien  the  number  of 
convictions  are  few,  or  the  statements  are  of  length,  but  in  most  cases  a 
tabular  form  will  be  preferred. 

CHAPTEIl   XI. 

DRAWING  AND  SUMMONING  JURORS. 

^  159.  It  is  made  the  duty  of  every  sheriff  to  attend  in  person,  or 
by  his  under-sheriff,  upon  the  drawing  of  every  grand  or  petit  jury  by 
the  clerk  of  the   county,  upon   receiving  from  such  clerk,  three  days 


11 


71  ltRAWlN(;   AM*  SlMMoNlNU  Jl  IK.tRS. 

notice  of  such  drawiiii:.'  He  is  also  hiiuikmI  to  attend  in  person,  upon 
tlu'  drawing  of  jurors  for  the  recortU'r's  court  oSthe  city  of  I'tira."^  It 
is  not  however  al)solutely  essential  to  the  reguhuity  i-f  \\u'  ihawing  in 
either  case  that  he  should  personally  attend.'  for  the  same  may  be  pro- 
ceeded with  if  the  other  pro|)er  ollicers  are  j)rcscnt.* 

^  1('»().  When  the  proper  olKcers  shall  have  appeared,  the  clerk  shall 
procee<l  in  their  presence  to  draw  the  jury.'  He  shall  conduct  such 
ilrawini:  as  follows: 

1.  He  shall  shake  the  box  containinir  the  names  of  the  jurors  returned 
to  him,  so  as  to  mix  the  slips  of  paper  on  which  such  names  are  writ- 
ten, as  much  as  possible : 

2.  He  shall  then  publicly  draw  out  of  the  said  box,  as  many  of  the 
said  slips  of  paper  containinu;  such  names  as  there  shall  be  jurors 
required  by  law.  or  specially  ordered  for  such  court : 

3.  A  minute  of  the  drawing  shall  be  kept  by  one  of  the  attending 
oflicers,  in  which  shall  be  entered  the  name  contained  on  every  slip  of 
paper  so  drawn,  before  any  other  such  slip  shall  be  drawn : 

4.  It",  after  drawing  the  whole  number  required,  the  name  of  any 
person  shall  appear  to  have  been  drawn  who  is  dead,  or  become  insane, 
or  who  has  permanently  removed  from  the  county,  to  the  knowledge 
of  the  clerk  or  any  other  attending  olhcer,  an  entry  of  such  fact  shall 
be  made  in  the  minute  of  the  drawing,  and  the  slip  of  paper  contain- 
ing such  name  shall  be  destroyed  : 

5.  Another  name  shall  then  be  drawn  in  the  j>lace  of  that  contained 
on  the  slip  of  paper  so  destroyed,  which  shall  be  in  like  manner  entered 
in  the  minutes  of  the  drawing : 

(3.  The  same  proceeiling  shall  be  had  as  often  as  may  he  necessary, 
until  the  whole  number  of  jurors  refjuired  shall  have  been  drawn: 

7.  The  minute  of  the  drawing  shall  then  be  signed  by  the  clerk  and 
the  attending  olTicers,  and  shall  be  filed  in  the  clerk's  oiUce  : 

8.  A  list  of  the  names  of  the  persons  so  drawn,  with  their  additions 
and  place  of  residence,  and  specifying  for  what  court  they  were  drawn, 
shall  be  made  and  certified  by  the  clerk,  and  the  attending  olli('ers, 
and  shall  be  delivered  to  the  sherill'of  the  county.'  And  on  the  payment 
of  the  fees  allowed  by  law,  the  clerk  and  sheriff  shall  furnish  a  copy 
of  sjich  list  to  any  |)erson  applying  therefor:' 

9.  When  the  sanie  person  shall  be  drawn  as  a  grand  and  petit  juror 
to  attend  the  muuc  court,  his  name  shall  be  omitted  from  the  list  of 
petit  jurors  and  another  name  shall  be  drawn   from  the  jietil  jury  box; 

•  2R.  S  •11'        •'  "''.               »  2  II.  M.  ■Uy.',,(/.tl,'Uht',\.  •>2U.  S.  •IM.v'J'.t. 

11  i,r,]  ;hc<l,         L.iWH  IKJI,  ell.  ;51'.i,  v;ll.         1.1.002,  (■>:{:»,  •nil  cl. 

2  H    >^  »2U  H  .|l:!.  C/27.                        2  R.  «.  721,  ^><>Hi,  11. 

1,1  1               M  m\,  U7,  nil  oil.              III.  ihm;,  </A0,  ll,  •llhod. 

L  .  -   g         ♦  2  K   S.  411,  <yiH.  *  2  K.  H.  111.  <)^\. 

Cvdv,  VV^,  o*.  I'l.  002,  </4i<,  4lb  cd.                  Id.  002,  (>41,  llli  ..l. 


DRAWING  AND  SUMMONING  .HIRORS.  75 

and  after  the  completion  of  the  drawing  of  the  i)etit  jumrs,  the  name  of 
such  person  drawn  for  the  grand  jury,  shall  be  returned  to  the  |.etil 
jury  box.' 

^  1<»I.  If  any  person  whose  duty  it  shall  l)e  to  assist  at  the  drawing 
of  any  jurors  to  attend  any  court,  shall  designedly  put  or  consent  to 
the  putting  u[>on  any  list  of  jurors  as  having  been  drawn,  any  name 
which  shall  not  have  been  drawn  for  that  purpose  in  the  manner 
prescribed  by  law;  or  shall  omit  to  i)lace  on  such  list,  any  name  that 
shall  have  been  drawn  in  the  manner  prescribed  by  law  ;  or  shall  sign 
or  certify  any  list  of  jurors  as  having  been  drawn,  which  was  not 
drawn  according  to  law  ;  or  shall  be  guilty  of  any  other  unfair,  partial 
or  improper  conduct  in  the  drawing  of  any  such  list  of  jurors ;  he 
shall,  upon  conviction,  be  adjudged  guilty  of  a  misdemeanor.^ 

^  1(5"2.  Jurors  drawn  for  a  term  of  any  court  shall  be  summoned  at 
least  six  days  previous  to  the  sitting  thereof;^  unless  it  be  for  the  city 
court  of  Brooklyn,  when  they  shall  be  summoned  at  least  four  days 
before  the  sitting  thereof;'  and  new  panels  for  said  court  shall  be 
summoned  at  least  two  days  before  the  time  at  which  they  shall  be 
recjuired  to  attend  ;'  or  for  the  recorder's  court  of  the  city  of  Utica, 
when  they  shall  be  summoned  at  least  two  days  before  the  sitting  of 
such  court.*  When  talesman  are  summoned,  they  may  be  required 
to  attend  forthwith,  or  at  such  time  as  the  court  may  direct ;  and  so 
of  jurors  to  attend  upon  any  special  proceedings  ;  except  in  the  case 
of  a  jury  to  assess  the  value  of  laud  taken  for  a  plank  roacj,  when  they 
shall  be  summoned  at  least  four  days  before  the  day  specified  for  their 
attendance.^ 

g  1G3.  Jurors  for  either  a  regular  term  of  any  court,  or  for  any 
special  proceeding  before  any  court  or  ollicer,  may  be  summoned  by 
a  deputy  of  the  sheriff,  as  well  as  the  sherilT  himself,  unless  the  power 
is  expressly  confined  to  the  latter  ;'  and  the  sherift'or  his  under  sheriff, 
may  by  writing  deputize  or  authorize  persons  to  summon  any  jurors 
except  it  be  in  such  last  mentioned  case ;'  and,  whe:  e  there  are  no 
jurors  undrawn,  or  for  any  reason  no  juror  can  be  obtained  from  the 
list  returned  by  the  sherilf,  on  the  trial  of  any  issue,  if  the  sherilf  is  a 
party  in  such  issue,  some  other  person  may  be  appointed  by  the  court, 
to  summon  jurors  from  the  bystanders,  or  other  persons.'" 

^  104.  In  summoning  a  juror  the  ollicer  should  state  to  him.  person- 

1  2  R.  S.  722,  ^18.  *  -  II  3.  408,  <)122,  4th  od.      •  2  R.  S.  1101,  (^81.  4th  ed. 

Id  907  <\18,  4thed.  L.iws  1849,  ch.  125,  V)17.          Laws  1847,  ch.  210,  ^17. 

8  2  R  S  693  ^18  5  2R.  S.  408,  ^123,  4th  ed.      s  g  Wend.  63. 

Id.  876,  ()18.  4th  ed.  L.ws  1849,  ch.  12-5,  ^;18.     »  Post,  ^167. 

3  2  R.  S.  414,  '^30.  «  2  R.  S.  403,  ^94,  4th  ed. 

Id.  662,  ^40, 4th  ed.  Laws  1844,  ch.  819,  $11. 

Id.  723,  ^24. 

Id.  907,  ^24,  4th  ed. 


7G  DllAWlNG  AND  SlMMoMNi;  Jl  ROKS. 

:illy.  if  he  can  he  found,  that  he  is  thcrehy  .summoned  to  serve  as  a 
u'land  or  |H*tit  juror,  as  the  case  may  be,  at  the  particuhir  court  at 
which  he  is  required  to  appear;  mentioning  the  lime  and  j)hice.  Tl>e 
j)recise  lanyuaire  which  he  may  use  is  uniniporlant,  if  the  fact  that  he 
has  been  so  ihawn  or  selecleil  to  serve  as  a  juror,  and  the  jjarlicuhir 
lime  and  place  at  which  hi-  is  ie<iiiir('(l  to  attend,  is  distinctly  stated. 
If  any  juror  who  has  been  regularly  drawn  as  aforesaid,  cannot  be 
found  to  l)e  |>crsonally  summoned,  the  service  may  be  made  by  leaving 
a  written  or  jninted  notice  of  such  drawiuL',  ;md  containing  a  statement 
of  the  lime  and  jtlacc  where  he  is  to  appear,  at  such  ]»erson's  place  of 
residence,  with  some  j^erson  of  proper  age.'  {Sometimes  such  notice 
is  delivered  to  the  juror,  even  when  summoned  personally,  but  this  is 
not  necessary.  The  jicrson  must  be  served  personally,  if  he  can  be 
lound ;  or  by  leaving  the  notice  at  his  place  of  residence  as  aforesaid, 
if  he  cannot  be  so  found,  whether  he  be  exempt  from  serving  upon  a 
jury  or  not,  or  has  a  valid  excuse.  The  summoning  a  juror  who  has  been 
drawn  or  selected  to  attend  before  an  officer  in  a  special  proceeding, 
shall  be  made  in  all  respects  in  the  same  manner.  If  the  person  has 
not  been  so  drawn,  or  selected  as  aforesaid,  but  is  summoned  as  a 
talesman,  under  the  order  of  the  court,  or  in  any  special  proceedings 
l)eforc  an  otlicer,  when  the  sherifl' selects  the  jurors  himself,  the  service 
must  in  all  cases  be  personal. 

^  1G5.  It  shall  not  be  a  good  cause  of  challenge  to  the  panel  or 
array  of  jurors  in  any  cause,  that  they  were  summoned  l)y  the  sheritl", 
who  was  a  parly,  or  interested  in  such  cause  ;  or  related  to  either 
l)arty  thci-ein,  unless  it  be  alleged  in  such  challenge,  and  be  satisfac- 
torily shown,  that  some  of  the  jurors  drawn  were  not  summoned,  and 
that  such  omission  was  intentional.'' 

<5  lOG.  If  at  any  court  of  oyer  and  terminer,  or  court  of  sessions, 
there  shall  not  appear  at  least  sixteen  persons  duly  (jualified  to  serve 
as  grand  jurors,  who  shall  have  been  summoned  for  that  purpose ;  or 
if  the  number  of  granrl  jurors  attending  sh.-dl  be  reduced  l)elow  sixteen, 
by  any  of  them  being  discharged,  or  olheiAvise,  such  court  may,  by  an 
order  to  be  entered  in  its  minutes,  direct  the  sherifl'of  the  county  to 
summon  the  number  of  persons  necessary  to  complete  the  grand  jury 
for  such  court.'  And  the  sheriir shall  summon  such  munber  of  j)ersons 
accordingly.*  And  if  any  olVence  shall  be  committed  during  the  sitting 
of  any  court  of  oyer  and  terminer,  or  court  of  sessions,  alter  the  grand 
jury  attending  such  court  shall  have  been  discharged,  such  c<»urt  may, 
in  its  discretion,  by  order,  to   be   entered  in   its  minutes,  direct  the 

t  2  R.  8.  414,  <)30.  «  2  n.  8.  420,  <)57.  «  2  R.  H.  72:?,  </H. 

Id.  G62,U0,  4th  cd.  M    i'.'',7.  <X,1 ,  Mh  od.  Id.  W8,  ^2-1,  Itli  ..'.l. 

>  2  K.  S  77.!,  <;2:{. 
Id.  l>07,<)2;{,  4th  fd. 


DRAWING  AND  SUMMONING  JURORS.  77 

sheriff  to  summon  anollier  grand  jury.'  Ami  the  sherifl*  shall  accord- 
in^'Iv  fortlnvith  summon  such  grand  jury  from  the  inhahitanls  of  the 
("ounty  (jualified  to  serve  as  petit  jurors,  and  shall  return  the  names 
thereof  to  the  court.' 

^  1G7.  Whenever  a  sufficient  number  of  jurors,  duly  drawn  and 
summoned,  do  not  appear,  or  cannot  be  obtained,  to  form  a  jury,  the 
court  may  order  the  sheriff  to  summon  from  the  bystanders,  or  from  the 
county  at  large,  so  many  persons  (pialified  as  yietit  jurors,  as  shall  be 
sufficient ;"  and  the  sheriff  shall  summon  the  number  so  ordered,  from 
among  the  inhabitants  of  the  county,  duly  qualified  to  serve  as  jurors 
in  the  cause,  and  return  the  names  to  the  court.*  And  if  by  reason  of 
there  being  one  or  more  juries  empanelled,  or  for  any  other  reason, 
there  shall  not  remain  any  ballots  undrawn ;  or  if,  in  consequence  of 
jurors  being  set  aside,  no  juror  can  be  obtained  from  the  list  of  ihbse 
returned  by  the  sheriff,  for  the  trial  of  any  issue,  the  court  may,  as  in 
other  cases,  order  the  sheriff,  or  if  he  be  a  party  in  such  issue,  some 
other  person,  to  be  appointed  by  the  court,  to  summon  jurors  from  the 
bystanders,  or  other  persons  who  shall  be  returned  and  summoned  as 
in  other  cases.^ 

§  168.  In  the  city  of  New  York,  new  panels  of  jurors  may  be 
ordered  by  the  courts  held  therein,  and  the  county  clerk  shall  draw  the 
same,  and  deliver  a  list  of  the  names  drawn,  to  the  sheriff,  in  the  same 
manner  as  provided  for  other  juries  ;®  and  the  sheriff  shall  summon 
such  jurors  in  the  same  manner  as  the  first  jury  drawn,  and  shall  in 
like  manner,  return  the  names  of  those  summoned,  to  the  court.''  New 
panels  may  also  be  ordered  and  drawn  to  serve  in  the  city  court  of 
Brooklvn,  and  they  shall  be  summoned  to  attend  as  in  other  cases,  at 
least  two  days  before  the  time  they  are  required  to  attend.' 

g  169.  Whenever  a  foreign  jury  shall  be  ordered  by  any  court,  a 
venire  for  that  purpose  shall  issue  to  the  sheriff  of  the  proper  county, 
who  shall  give  notice  of  the  same  to  the  clerk  thereof,  at  least  twenty 
days  before  the  return  of  such  venire,  when  such  clerk  shall  draw  the 
names  of  twenty-four  persons  from  the  lists  returned  to  him  by  the 
town  otlicers,  in  the  same  manner  as  in  the  case  of  ordinary  juries, 
and  shall  deliver  a  list  of  the  names  so  drawn  to  such  sheriff,  who 
shall  summon  them  as  in  other  cases.' 

^  170.  When  the  selection  of  jurors  is  left  to  the  discretion  of  the 
sheriff,  he  should  be  careful  that  the  person  or  persons  selected  by  him 

1  2  R.  S.  725   Vi34.  <  2  R.  S.  419,  ^55.  '  Laws  1853,  ch.  498,  v"- 

Id.  909,  ()34,  4th  ed.  Id.  066,  ()66,  4th  ed.  8  2  R.  S.  417,  ^44. 

2  2  R.  S.  725  <\3d.  s  o  R.  S.  421,  ^66.  Id.  665,  (>54,  4th  cd. 

Id.  909,  (>35,  4th  ed.  Id.  068,  ^76,  4th  cd.  ^  2  R.  S.  408,  (>123,  4th  cd. 

3  2  R.  S.  419,  ^54.  6  2  R.  S.  417,  ()43.  Laws  1849,  ch.  125,  ^18. 
Id.  666,  ^64, 4th  ed.                Id.  664,  ()53,  4th  cd. 


78  DRAWING  AND  :SLMMONiNG  Jl.ROUS. 

have  tlu'  necessary  legal  (jualifications.  and  that  they  are  not  exempt 
Iroin  serving  ujMtn  juries,  lie  should  select  llK»se  only  who  are  in 
nowise  of  kin  to  the  parties,  however  remote  :  and  no  one  who  is  inter- 
ested in  the  proceedings,  or  who  he  has  reason  t<.»  btlieve  is  biased 
or  prejudiced  lor  or  against  either  of  the  parties ;  or  who  has  given  an 
opinion  upon  the  subject  in  controvi-rsy,  and  he  should  not  permit 
either  of  the  |>arties,  or  any  other  person,  to  name  any  juror.  But  after 
summoning  one  to  serve  as  a  juror  in  any  case,  whether  he  is  exempt 
from  service,  or  has  a  valid  excuse  for  not  serving,  the  sheriff  cannot, 
on  hearing  that  fact,  release  him  and  summon  another  in  liis  place,  for 
the  court  or  officer  before  whom  such  ixm-cu  is  summoned  to  appear, 
can  alone  discharge  him. 

5  171.  Jurors  must  be  possessed  of  the  following  qualifications: 

I.  They  must  be  males: 

2.^  Of  the  age  of  twenty-one  years  or  upwards,  and  under  sixty 
years  old  : 

3.  And  be  at  the  time,  assessed  for  personal  property  belonging  to 
them  in  their  own  right,  to  the  amount  of  two  hundred  and  fifty 
dollars,  or  shall  have  a  freehold  estate  in  real  property  in  the  county, 
belonging  to  them  in  their  own  right,  or  in  the  right  of  their  wives,  to 
the  value  of  one  hundred  and  fifty  dollars.'  But  this  property  (pialifi- 
cation  shall  not  be  necessary  in  the  case  of  any  person  residing  in 
either  of  the  counties  of  Niagara,  Erie,  Chautauque,  Cattaraugus, 
Alleganv,  Genesee,  Orleans,  Monroe,  Livingston,  Jellerson,  Lewis, 
St  Lawrence,  Steuben  and  Franklin,  if  he  shall  be  qualified  in  all  other 
res[>ects,  and  shall  have  been  assessed  on  the  last  assessment  roll  of 
the  town,  for  land  in  his  possession,  which  he  has  under  contract  Ibr 
the  purchase  thereof,  uj)on  which  improvements  shall  have  been  made 
to  tlie  value  of  one  hundred  and  fifty  dollars,  and  shall  own  such 
improvements."  And  every  person  residing  on  the  New  Stockbridge 
tract,  in  the  towns  of  Vernon  and  Augusta,  in  the  county  of  Oneida, 
and  Lenox  and  Smithfield,  in  the  county  of  Madison,  who  shall  be  in 
possession  of  lands  under  a  contract  for  the  purchase  thereof,  and 
shall  be  worth  one  hundred  and  fifty  dollars  in  j»ersonal  property,  or 
siiall  have  made  imj)rovements  upon  such  lands  t(»  that  amount,  shall, 
if  otherwise  (pialified  according  to  law,  be  (qualified  to  serve  as  a  juror 
in  any  court  holden  before  any  justice  of  the  peace  within  the  town 
where  such  jKsrson  resides.'  And  it  shall  not  be  necessary  as  a  (juali- 
fication  for  any  juror  in  the  city  of  New  York,  that  he  shall  actually 
be  iLsses.sed  in  the  said  city,  but  all  persons  residing  in  said  city  who 
shall  be  (jualified  to  serve  as  jurors,  and  not  exempted  by  any  of  the 

1  2  R  8  411,  (AZ.  «  2  U.  8.  112,  <;14.  »  2  R.  8.660,  ^0,  4lh  cd. 

Id.  C56,  <>6,  4lh  c<l.  Id.  060,  <>0,  llh  ed.  L.iws  IWJ,  ch.  67,  ^1. 


DRAWINC;  AND  SUMMONING  JrR(-)RS.  79 

laws  of  this  state,  shall  be  selected  as  such,  whether  they  have  been 
assessed  or  not  :' 

4.  Ill  the  possession  of  their  natural  faculties,  and  not  infirm  or 
decrepit : 

5.  Free  from  all  legal  exceptions,  (that  is,  not  an  alien  or  slave, 
nor  ever  convicted  of  any  infamous  crime,'^)  of  fair  character,  of 
approved  integrity,  sound  mind  and  well  informed.^ 

5  172.  In  all  cases,  except  in  that  of  a  foreign  jury,  t,he  jurors  must  be 
residents  of  the  county,  in  which  the  court  or  proceeding  whereat  they 
are  required  to  serve  is  held ;  and  in  justice's  court,  they  must  be  resi- 
dents of  the  same  town  where  the  justice  who  issues  the  venire  resides,* 
unless  the  action  be  Itetween  two  towns,  when  the  jurors  shall  be 
summoned  from  the  county  at  large,'  but  not  from  either  of  the 
towns.*  And  when  a  jury  is  drawn  to  assess  damages  in  a  highway 
case  in  any  town,  they  must  be  drawn  and  summoned  from  an  adjoining 
town/ 

i5  173.  No  inhabitant  of  any  town,  city  or  county,  shall  be  discjual- 
ified  as  a  juror  or  witness  in  any  cause  brought  to  recover  any  penalty 
or  forfeiture,  on  the  ground  that  such  penalty  or  forfeiture  is  to  be 
applied  for  the  benefit  of  such  town,  city  or  county,  or  for  the  benefit 
of  the  poor  thereof;  nor  shall  any  olRcer,  on  such  ground,  be  disqual- 
ified from  serving  any  process  for  the  summoning  a  jury  in  such  case.^ 
And  on  the  trial  of  any  action  in  which  the  county  is  interested,  the 
electors  and  inhabitants  of  such  county  are  competent  as  witnesses 
and  jurors.^  In  penal  actions  for  the  recovery  of  any  sum,  it  shall  not 
lie  a  cause  of  challenge  to  the  jurors  summoned,  or  to  any  officer 
summoning  them,  that  such  juror  or  officer  is  liable  to  pay  taxes  in 
any  town  or  county,  which  may  be  benefited  by  such  recovery.'"  And 
in  trials  in  which  a  town  shall  be  a  party,  or  be  interested,  the  electors 
and  inhabitants  of  such  town  shall  be  competent  witnesses  and  jurors, 
but  when  it  is  between  two  towns,  no  inhabitant  of  either  town  shall 
be  a  juror. ' ' 

'^  174.  The  following  persons  are  exempt  from  serving  on  juries : 

1.  Every  person  who,  on  the  first  day  of  May,  one  thousand  eight 
hundred  and  forty-eight,  had  been  a  fireman  in  any  of  the  cities  or 
villages  of  this  state,  for  the  term  of  four,  five  or  six  years,  and  who 
has  served  as  such  one  year  thereafter;  and  every  person,  who  on  the 

1  2'r.  S.  657,  <>14.  4  2  R.  S.  242,  <)94.  8  2  R.  S.  551,  (y2. 

L:uvs  1847,  cb.  495,  <d.  M.  441,  (^Si,  4th  cd.  M.  782,  <yl,  4th  cd. 

a  6  John.  332.  s  2  R.  S.  243,  v%.  '  1  R.  S.  384,  <)4. 

3  Black.  Com.  3(52,  363.  Id.  441,  <\87,  4th  cd.  Id.  711,  ()i,  4th  ed. 

1  R   S  721  ^y20.  «  1  R.  S.  3o7,<)4.  'o  2  R.  S.  420,  ^58. 

2R  S  120  v\29,  4thod.  Id.  Ot>5.  V;4,4th  ed.  Id.  667,  <>68,  4th  cd. 

3  2  R  S  411  \U3.  7  1  R.  S.  lt>43,  ^^78,  79.  >i  1  R.  S.  357,  ^4. 

Id.  656,  <j5,'4th  ed.  L.iws  1847,  ch.  455,  (fyZ,  4.      Id.  665,  <>4, 4th  cd. 


80  DllAWlNC   AM)  SUMMONING  JTRORS. 

first  (lay  of  May  aforesaiil.  Iiatl  been  such  fireman  for  a  less  period  of 
time  than  four  years,  ami  who  has  servetl  as  such  for  so  long  a  time 
thereafter  as  shall  make  the  whole  term  of  his  service  five  years  :  and 
every  ixMSon  wln>  may  have  become  such  fireman  after  the  j)assage  oi  the 
act  (April  the  fifth,  one  thousand  eight  hundred  and  forty-eight,)  and 
has  served  as  such  for  five  years  thereafter,  shall,  during  and  forever 
after  such  service,  be  exempted  from  serving  as  a  juror  in  any  of  the 
courts  of  this  state.'  And  the  court  shall  discharge  any  person  from 
serving  as  a  juror  when  he  is  a  member  of  any  company  of  firemen, 
duly  organized  according  to  law."  But  it  is  provided  that  in  the  city 
of  New  York  no  fireman  shall  be  exempted  from  jury  duty,  unless  he 
actually  performs  all  the  duty  of  a  fireman  in  bis  company ;  and  to 
entitle  him  to  such  exemption,  he  shall  pif)duce  a  certificate  of  the 
foreman  or  other  chief  ollicer  of  his  company,  that  he  is  a  faithful  and 
acting  member  thereof  This  provision  however,  is  not  to  afiect  those 
who  are  exempt  from  serving  as  jurors,  by  reason  of  having  served  as 
firemen  for  the  period  required  by  law.^  The  members  of  a  fire 
company  organized  for  the  protection  of  any  cotton,  woolen  or  linen 
manufactory,  while  they  respectively  hold  the  appointment,  shall  be 
exempted  from  serving  as  jurors  ;  and  the  certificate  of  the  directors, 
or  their  authorized  agent,  under  the  seal  of  said  company,  shall  be 
evidence  of  the  appointment  of  such  firemen  in  all  cases.^  And  so  of 
the  members  of  the  fire  company  organized  for  the  protection  ol  the 
Auburn  prison.  They  shall  be  exempt  from  serving  on  juries  so  long 
as  they  shall  continue  such  members  :' 

2.  Olficers,  non-commissioned  ofiicers,  musicians  and  privates  now 
belonging  to,  or  who  shall  hereafter  belong  to  the  militia  of  this  state, 
who  have  served  or  shall  hereafter  serve  faithfully  seven  years  ;  also 
all  general  and  staff  ofinrers ;  all  field  officers  and  all  commissioned 
and  non-commissioned  otlieers,  musicians  and  privates  of  the  unilorm 
corps  of  this  state,  during  the  time  they  shall  jjerform  military  duty." 
And  every  officer,  non-commissioned  officer,  musician  and  jirivate  of 
the  first  military  division,  and  the  fifth  brigade  of  the  second  military 
division,^  if  he  shall  have  actually  served  at  all  the  parades,  drills  and 
reviews  retjuired  by  law  in  said  division,  during  tlu>  year,  uj)  to  the 
time  of  claiming  such  exemption,  armed  and  e(piip[)ed  as  the  law 
directs,  or  shall  have  been  duly  excused  therefrom.  And  the  officers 
an<l  members  of  the  said  first  division  residing  in  the  city  of  \ew  Yo;-k^ 
who  shall  have  served  for  the  full  term  of  seven  years,  shall  thereafter, 
at  their  request,  be  so  exempt."     iiut  the  court  before  which  such  exenip- 

>  2  n.  8,  657,  ^7,  4lh  od.  »  '1  K.  H.  000,  (p;  •-  'j  U.  S.  \m,  <\133,  llh  .•<! 

Law.  IRIH,  rli.  IHH.  g.  \.:x^^^  1K|7,  ,.|i.   r.i...  Uo.       «  1  K.  S.  <;.!(l,  vjj,  .III)  r.I. 

"  '1 R.  H  iV>,<yU  «  1  K  s  vi\2,  \)\i),  .Jill  «•(].    7  L.1W5  iH.-)j,  p  KtMj,  <y;r). 

Id.  CGii,  ^13,  4lb  cd.  L.%w«  1815,  di.  'HYl,  (>1.        »  Id.  p.  lOHl,  </>&8,  00. 


DRAVVINi;  AND  SUMMONINr.  .U'RORS.  81 

lion  shall  bo  claimed,  shall  not  receive  any  certificate  as  conclusive, 
but  may  exainiiie  into  the  facts  of  the  service  on  account  of  vv^hich  such 
exemption  is  claimed.'  The  commissioner  of  jurors  of  the  city  of  New 
York,  shall  ciitci-  in  a  list  those  exempt,'*  and  shall  give  to  every  person 
so  registered,  a  CL'rtificale  thereof,  which  shall  bo  ])roof  of  such 
exemjition  :^ 

3.  Every  collector  of  tolls  on  the  canals,  the  clerks  of  each  collector, 
not  exceeding  two,  having  the  collector's  certificate  that  they  are 
actually  employed  by  him.  and  all  superintendents  of  repairs,  lock 
tenders,  inspectors  of  boats  and  weighmasters,  while  actually  engaged 
in  their  respective  employments  on  the  canals,  while  the  same  are 
navigable:^ 

4.  The  superintendent,  and  each  of  his  deputies,  and  all  persons 
employed  in  attendance  upon  any  works  for  the  manufacture  of  coarse 
salt ;  and  the  commission  or  appointment,  in  writing,  of  any  such  officer 
or  deputy,  and  the  certificate  of  any  owner  or  agent  of  any  coarse  salt 
manufactory,  that  any  person  is  employed  or  engaged  in  attending  upon 
such  manufactory,  shall  be  evidence  of  the  facts  stated  therein  :' 

5.  The  keeper  of  every  county  or  state  prison,  and  all  persons 
employed  in  any  such  prison,  shall  be  exempted  during  their  continu- 
ance in  oflice,  from  serving  on  juries  :  ® 

0.  The  keeper  of  every  poor-house,  alms-house  or  other  place  pro- 
vided by  any  city,  town  or  county,  for  the  reception  and  support  of  tho 
poor,  shall  be  exempt  from  serving  on  juries :'' 

7.  The  resident  olHcers  of  the  state  lunatic  asylum,  and  all  attend- 
ants and  assistants  actually  employed  therein,  during  the  time  of  such 
employment,  shall  be  exempt  from  serving  on  juries  ;  and  the  certificate 
of  the  superintendent  shall  be  evidence  of  the  fact  of  such  employment:^ 

8.  Those  whose  religious  faith  and  practice  is  to  keep  Saturday  as 
the  Sabbath,  shall  not  be  subject  to  serve  as  jurors  in  justices'  court? 
on  such  day." 

g  175.  Certain  persons  returned  as  jurors  shall  be  discharged  by  the 
court  from  serving  as  jurors ;  and  certain  others  shall  be  excused  from 
so  serving.  If  any  person  is  drawn  to  serve  as  a  juror  before  any 
court  or  oflicer.  the  sheriff  whose  duty  it  is  to  summon  the  same,  must 
do  so,  notwithstanding  his  right  to  be  discharged  or  excused  ;  for  in 
such  case  he  has  no  discretion.  But  if  the  sheriti'is  required  to  select 
the  jurors  himself,  he  ought  not  to  summon  any  who  he  has  reason  to 
believe,  are  entitled  to  be  discharged  or  excused.     If  however,  he  does 

1  Laws  1854,  p.  10S2,  v\Gl.      s  i  R.  S.  278,  ^15:].  "  1  R.  S.  GU,  ()72. 
8  Id  ^62                                       W.  553,  v224, 4th  ed.  2  R.  S.  24,  ^85.  4th  ed. 

3  Id.  ^63.  «  2  R.  S.  968,  ^151,  4th  ed.  s  o  R.  S.  42,  p6,  4tli  cd. 

«  1  R.  S.  260,  §187.  Laws  1842,  ch.  135,  §10. 

Id.  518,  §292,  4th  ed.  9  Laws  1847,  p.  451,  §2. 

12 


S2  DRAWING  AN'1»  SUM.MUMNG  JLUOKS. 

select  any  such  person,  he  cannot,  after  hearini^  liis  excuse,  release  him 
and  select  another  in  his  jtlace.  In  such  case  the  court  al<jne  can  dis- 
charire  him  from  serving. 

;3  17(5.  The  court  shall  discharge  any  jiersoii  fn»m  serving  on  a  jury, 
in  the  following  cases  : 

1.  When  it  shall  satisfactorily  appear  that  the  person  is  not,  at  the 
time,  possessed  of  the  projierty  qualifications  required:' 

2.  When  it  shall  appear  that  such  jierson  is  under  twenty-one  years 
of  age,  or  over  sixtv  years  of  age  ;  or  that  he  is  not  in  the  possession 
of  his  rational  faculties  : 

3.  When  there  is  any  legal  exception  against  such  person  : 

1.  When  such  person  is  a  non-commissioned  olRcer,  musician,  or 
private  of  any  uniform  company  or  troop,  and  is  duly  equipped  and 
uniformed,  according  to  law,  and  shall  claim  such  exem])tion.  The 
evidence  of  such  exemption  shall  be  the  certificate  of  the  commanding 
ofiicer  of  the  company  or  troop,  that  the  person  claiming  the  same  is 
a  member  of  such  company,  and  is  duly  equipped  and  uniformed 
according  to  law.  Such  certificate  must  be  dated  within  three  months 
of  the  time  of  presenting  the  same  ;  and  the  signature  must  be  verified 
by  oath.  Every  such  certificate  shall  be  filed  with  the  clerk  of  the 
court  to  which  it  shall  be  olVered  : 

5.  When  such  person  is  a  member  of  any  company  of  firemen,  duly 
organized  according  to  law  : 

0.  When  such  person  is  in  the  actual  employment  of  any  glass, 
cotton,  linen,  woolen,  or  iron  manufacturing  company,  by  the  year, 
month,  or  season  : 

7.  When  such  person  is  a  superintendent,  engineer,  or  collector  of 
any  canal  authorized  by  the  laws  of  this  state,  any  portion  of  which> 
shall  be  actually  constructed  and  navigated  : 

8.  When  such  person  is  a  minister  of  the  gospel,  or  teacher  in  any 
college  or  academy,  or  when  such  person  is  or  shall  be,  specially 
exempted  by  law  from  serving  on  juries." 

iS  177.  The  court  to  which  any  person  shall  be  returned  as  a  juror, 
shall  excuse  such  juror  from  serving  at  such  court,  whenever  it  shall 
appear, 

1.  That  he  is  a  practicing  j)hysician,  and  has  jiaticnts  requiring  his 
attention  :  or, 

!j.  That  he  is  a  stirrogate,  or  justice  of  the  jjeace,  or  executes  any 
other  civil  ojhre.  the  duties  of  which  are,  at  the  lime,  inconsistent  with 
his  atten<lance  as  a  juror  : 

•  Aua-, <>171.  «2U.  s  .i)r.,(;3:?. 

1(1.  W2,  <,4:i,  -Ith  cd. 


OF  COMPELLING  Till-:  ATTENDANCF.  OF  WITNESSES.     83 

3.  Tluil  lie  is  a  teaclier  in  any  school,  actually  employed  and  serving 
as  such : 

4,  Wiien,  for  any  other  reason,  the  interests  of  the  public,  or  of  the 
individual  juror,  will  be  materially  injured  by  such  attendance  ;  or  his 
own  health,  or  that  of  any  member  of  his  family,  requires  his  absence 
from  such  court.' 

CIIAPTER  XII. 

OF  COMPELLING  THE  ATTENDANCE  OF  WITNESSES. 

g  178.  The  service  of  a  subpoena  or  summons  upon  a  witness, 
requiring  him  to  appear  and  testify  before  any  court  or  officer,  whether 
the  process  be  issued  in  a  civil  or  criminal  cause,  matter  or  proceeding, 
may  be  made  by  the  sheriff  or  by  any  of  his  deputies,  or  by  any 
marshal,  coroner  or  constable,  or  by  any  private  citizen,  whether  he 
be  a  party  to  the  proceeding  or  not.  And  whenever  it  shall  be  neces- 
sary to  send  subpoenas  into  a  foreign  county  for  witnesses  on  criminal 
process,  the  district  attorney  is  empowered  to  send  them  to  the  sheriff 
of  the  county  in  which  said  witnesses  reside,  whose  duty  it  shall  be  to 
serve  the  same,  and  make  his  return  without  delay  to  such  district 
attorney.^ 

g  179.  A  subpoena  or  summons  may  be  served  in  any  place  in  the 
state,  whether  it  be  in  the  county  where  issued  or  elsewhere ;  and  in 
the  day  time  or  at  night,  but  not  upon  Sunday.^  The  officer  or  person 
seeking  to  make  such  service,  may  ^nter  the  dwelling  of  the  witness 
peacefully  if  he  can,  for  that  purpose,  but  not  against  the  occupant's 
known  wishes;  and  in  no  case,  whether  in  a  criminal  or  civil  cause,  can 
doors  be  broken  open  to  enter  and  make  the  service.^ 

^  180.  The  manner  of  serving  a  subpoena  issued  out  of  any  court, 
to  compel  the  attendance  of  any  witness,  or  of  a  summons  of  a  judge  or 
officer  for  the  like  purpose,  is 

1.  By  exhibiting  to  the  party  to  be  served,  such  original  subpoena 
or  summons : 

2.  By  delivering  to  him  a  copy  thereof,  or  a  ticket  containing  the 
substance  thereof:  and 

3.  By  paying,  or  tendering  to  him,  the  fees  allowed  by  law  for 
travelling  to  and  returning  from  the  place  where  he  is  required  to 
attend,  and  the  fees  allowed  by  law  for  one  day's  attendance  thereat.' 

^  181.  The  manner  of  service  of  a  subpoena  in  a  criminal  case, 
issued  out  of  a  court  of  record,  is  the  same  as  in  a  civil  suit  or  pro- 

1  2  R.  S.  416,  <>35.  3  1  R.  y.  675,  <369.  s  2  R.  S.  400,  ^^42,  44. 

Id.  663,  V)45,  4th  cd.  2  R.  S.  83,  <^^,  4th  cd.  Id.  646,  <)<)bb,  67,  4th  ed. 

2  2  R.  S.  913,  ^67, 4th  ed.        *  8  How.  Pr.  Rtp.  435. 

Laws  1836,  ch.  506,  ^4. 


8-1   OF  co.Mri:i,Li.N(;  tiiI':  atthndanck  of  wrriNFssHs. 

ceeding:  that  is.  by  sliowint,'  t<>  the  witness  the  ordinal  siiltiHj'iia,  and 
at  the  same  time  <lehverini,'  to  him  a  copy  ihcreof,  or  u  lirkel  t-oiilaining 
the  substance  thereof.'  Witnesses  in  criminal  cases,  however,  are 
entitled  to  no  fees,  whothrr  they  art-  subiurnaed  to  testify  in  bidialf  of 
the  people  or  of  the  prisoner." 

^  \H'2.  The  proof  of  service  of  a  suitpcriia,  whotlici-  such  service  is 
made  by  an  otlicer  or  l>y  a  private  citizen,  is  usually  by  allidavit,  but 
the  certificate  of  a  j)roper  ollicer  of  the  due  service  thereof,  will  be 
sufficient. 

^  1S3.  Whenever  any  person  who  shall  have  been  duly  subpa-naed 
lo  appear  at  a  circuit  court, ^  or  at  a  court  of  sessions  or  court  of  oyer 
and  terminer;^  or  who  has  been  recognized  so  to  a{)pear  at  any  court 
of  sessions  or  court  of  oyer  and  terminer,'^  to  testify  in  any  cause  to  be 
tried  therein,  shall  neglect  or  refuse  to  attend,  in  pursuance  of  such  writ 
or  recognizance,  the  justice  or  judge  holding  the  circuit  court,  sessions 
or  oyer  and  terminer,  shall  have  power  to  award  an  attachment  against 
such  person,  and  to  proceed  thereon  to  punish  such  misconduct,  as  in 
ether  cases  of  contempt.*  The  wiit  ol"  attachment  may  be  tested  on 
the  day  when  issued,  in  the  name  of  the  presiding  judge,  and  be  return- 
able before  the  court  from  which  the  same  issues,^  and  the  allowance 
of  such  writ  shall  be  indorsed  thereon,  by  the  judge  awarding  the 
same.* 

^  184.  The  officer  to  whom  such  attachment  is  directed  and  deliv- 
ered, shall  execute  the  same,  by  arresting  and  keeping  the  defendant  in 
his  custody,  by  bringing  him  personally  before  the  court  on  the  return 
day  thereof,  and  by  detaining  him  in  such  custody  until  discharged  by 
the  order  of  the  court.  But  the  inability  from  sickness  or  otherwise, 
of  such  person,  to  attend  such  court,  personally,  shall  be  a  sufficient 
excuse  for  not  bringing  him  before  such  court.  j\or  shall  any  such 
officer  be  re(pjired,  in  any  case,  to  confme  any  person  arrested  upon 
an  attachment,  in  any  i)rison,  or  otherwise  restrain  him  of  his  personal 
liberty,  except  so  far  as  shall  be  necessary  to  secure  his  j)ersonal 
attendance.*  Though  the  attachment  is  in  the  nature  of  criminal 
process,  it  is  not  such  criminal  pn»cess  as  will  aulhoriz(i  its  execution 
upoi^  Sunday  ;  nor  will  it  authorize  the  breaking  open  doors  to  come 
at  the  [.arty  to  arrest  him.  The  jiowers  of  the  officer  under  the  writ, 
would  .seem  lo  be  analou'ous  to  those  he  may  exercise  u|»on  the  arrest 
of  a    delendanl   uj)on   civil    process,    with    this  difference,     that     the 

•  1  Dcnlo,  37,  38.  »  '2  R.  H.  540,  ^34.  •  2  H.  S  '>-10,  ^34. 

18W.-h<I   r,.",h  I.I  77.'.,  (■,;'. t,  Ith  i-a.  I.l.  773.<;:M,4lli  c(l. 

2  U.  H.  :.''■•.  vl »  •  -  'i    •'^   T'.J'.",  </,i.  '  LawM  1M7,  di.  2H{),  ^57. 

Id.  '.tlH.  <fV,,  lih  .•<!.  M   '.tl:'.,  v,H,  .Jill  r<\.  "  'J  K.  H  r,|o.  (y'.ry. 

2  2  R.    H.  72'J, »//».  ^  'i  R   H  '.'JO,  <y',i,  4lli  ..l.  M.  l~:\.^y'.:<,  Jih  cd. 

Id.  'JI3,  <>Gy,  4lh  cd.  Law.  IblO,  ch.  IbO,  ^i».  •  2  H   H  f>><i,  %.'.V,,  37. 

Id  773,  ^^30,  37,  4th  ed. 


OF  co.MPj:r.LiN(;  Tiir:  attendance  of  witnkssks.   85 

attachment,  unlike  civil  process,  may  be  executed  hy  llic  sin  rill'. )ut  of 
the  bounds  of  his  county,  as  well  as  within  it. 

<5  185.  There  is  no  provision  of  law,  which  points  out  in  terms,  the 
officer  to  whum  a  writ  of  attachment  issued  against  a  defaulting  witness 
by  any  circuit  court,  court  of  sessions,  or  a  court  of  oyer  ;ind  terminer, 
shall  be  directed  and  delivered  for  execution.  The  universal  practice 
with  those  best  qualified  to  determine  the  correctness  of  the  course, 
has  been  to  issue  such  attachment  to  the  officer  of  the  court  in  attend- 
ance, the  .shcrin'of  the  county,  who  executes  it,  like  criminal  process, 
in  whatsoever  part  of  the  state  the  delinquent  may  be  found.  This  is 
certainly  the  most  convenient,  practical  and  expeditious  mode  of  com- 
pelling the  attendance  of  a  witness,  who  may,  at  the  time  be  in  another 
county,  while  there  is  nothing  in  the  statute  prohibiting  such  course  ; 
for  certainly  the  provisions  of  the  statute  regulating  the  issuing  of 
attachments  against  defaulting  witnesses,  before  any  judge  or  officer, 
has  no  application  to  attachments  issued  by  courts  of  record. 

^  18(5.  In  case  of  the  failure  of  any  witness  to  attend,  pursuant  to  a 
summons,  before  any  judge  or  officer,  to  give  testimony,  or  to  have  his 
deposition  taken,  or  before  any  persons  named  in  any  commission, 
issued  by  a  court  of  any  other  state  or  country,  to  take  testimony,  the 
judge  or  officer  issuing  the  summons,  upon  due  proof  of  the  service 
thereof,  and  of  the  failure  of  such  witness,  shall  issue  his  warrant  to 
apprehend  such  witness  and  bring  him  before  such  judge  or  officer,  to 
be  examined,  or  bring  him  before  any  persons  named  in  a  commission 
issued  by  a  court  of  any  other  state  or  country,  to  take  testimony  for 
the  like  purpose.^  Every  warrant  to  apprehend  any  witness  in  the 
cases  aforesaid,  shall  be  directed  to  the  sheriff  of  the  county  where 
such  witness  may  be,  and  shall  be  executed  by  him  in  the  same  manner 
as  process  issued  by  courts  of  record.'* 

^  187.  If  any  witness  attending  before  any  judge,  officer  or  com- 
missioner, pursuant  to  a  summons,  or  brought  before  them,  or  either 
of  them,  shall,  without  reasonable  cause,  refuse  to  be  examined,  or  to 
answer  any  legal  or  pertinent  question,  or  to  subscribe  his  deposition 
after  the  same  has  been  reduced  to  writing,  the  officer  issuing  such 
summons,  shall,  by  warrant,  commit  such  witness  to  the  common  jail 
of  the  county  in  which  he  resides,  there  to  remain  until  he  submits  to 
be  examined,  or  to  answer,  or  to  subscribe  his  deposition,  as  the  case 
may  be,  or  until  he  is  discharged  according  to  law.  Every  such  war- 
rant of  commitment  shall  specify  therein  particularly  the  cause  of  such 
commitment;  and  if  such  commitment  be  for  refusing  to  answer  any 
question,  such  question  shall  be  stated  in  the  warrant.^ 

1  2  R.  S.  401,  ^46.  2  2  R.  S.  402,  ^69.  3  2  R.  S.  401,  </)il,  48. 

Id.  646,  ^59,  4th  cd.  Id.  647,  ^62,  4th  ed.  Id.  047,  ^^60,  61,  4th  ed. 


80    OF  COMrELLlNG  THE  ATJ^  ENDANCi-:  OF  WrrNFSSKS. 

^  188.  Any  witness  to  a  conveyance  served  with  a  subpcruH  issued 
by  any  Ktlicer  aulliori/cd  t«»  take  the  acknuwlnlijnient  or  |n-oot  ol 
convevances.  except  a  commissioner  of  deeds,  reciuirin^such  witness  to 
appear  and  testify  before  siicb  odicer  touching  the  execution  of  such 
conveyance,  who  shall  without  reasonable  cause,  refuse  or  ne<,dect  to 
ap|>ear,  or  appearing,  shall  refuse  to  answer  upon  oath,  touching  the 
matters  aforesaid,  shall  forfeit  to  the  party  injured,  (»ne  hundred  dollars  ; 
and  may  also  be  committed  to  prison  by  the  iilbccr  who  issued  such 
subpoena,  there  to  remain  without  bail,  ami  without  the  liberties  ot  the 
jail,  until  he  shall  submit  to  .answer  on  oath  as  aforesaid.' 

^  18S».  Every  such  attachment  is  in  the  nature  of  criminal  process, 
and  runs  in  the  name  of  the  people  of  the  state  of  New  York,  whether 
the  original  subpcrna  was  issued  in  a  civil  or  in  a  criminal  cause  or 
proceeding ;  and  hence,  though  the  sherill'  may  have  been  a  party  to 
such  original  action  or  proceeding,  yet  he  may  serve  any  attachment 
issued  against  a  defaulting  witness  therein,  whether  he  was  subpoenaed 
to  testify  in  his  behalf,  or  in  the  behalf  of  the  other  party. 

(3  lyO.  A  subjjcrna  in  a  civil  case  before  a  justice  of  the  peace,  may 
be  served  either  by  a  constable,  or  any  other  person  ;  and  it  shall  be 
served  by  reading  the  same,  or  stating  the  contents  to  the  witness,  and 
by  paying  or  tendering  the  fees  allowed  by  law  for  one  day's  attend- 
ance of  such  witness." 

^  191.  Whenever  it  shall  appear  to  the  satisfaction  of  the  justice,  by 
proof  made  Ijefore  bin),  that  any  person  duly  subptenaed  to  ai)pear 
before  him  in  any  cause,  shall  have  refused  or  neglected,  without  just 
cause,  to  attend  as  a  witness  in  conformity  to  such  subpa-na,  (which 
proof  may  be  by  the  aflidavil  of  the  party  in  the  suit  apjilying  for  the 
attachment,  or  by  other  competent  testimony  to  the  satisfaction  of  the 
justice,)  and  the  i)arty  in  whose  behalf  such  witness  sh.ill  have  been 
6ubi>a:naed,  shall  make  oath  that  the  testimony  of  such  witness  is 
material,  the  justice  shall  have  power  to  issue  an  attachment  to  compel 
the  attendance  of  such  witness.^  Every  such  attachment  shall  be 
executed  in  the  same  manner  as  a  warrant,  and  the  fees  of  the  ollicer 
for  issuing  and  serving  the  same,  shall  be  paid  by  the  persoH  against 
whom  the  same  shall  have  been  issued,  unless  he  shall  show  reasonable 
cause  to  the  satisfaction  of  the  justice,  for  his  omission  to  attend  ;  in 
which  case,  the  party  re<|uiring  such  attachment  shall  i>ay  all  the  costs 
of  such  attachment,  and  the  service  of  the  same.* 

^  U*2.  When  a  commission  i.ssued  by  a  justice  of  the  peace  to  take 
the  testimony  of  a  witness  in  a  cause  pending  before  such  justice,  is 

'  1  K  H  T.'H   «'MT  1 1  '  'J.  It.  S  1:11,  (;H;i.  <  2  It  S.  2U,<)Si. 

2R.H    ■  '..llhfd.      M.  «;'.'•,  y;'.,  4th  ctl.  M.  4aU,  ^74,  Jtli  cd. 

a  2R.  8,  -  L-awt  !>>•!*,  liJJO. 

Id.  43'J,  (,12,  4Uicd. 


» 
OF  COMPELLING  THE  ATTENDANCE  OF  WITNESSES.     87 

executed  in  this  state,  the  commissioner  shall  have  the  same  power  to 
issue  suhpaMias,  swear  witnesses,  and  comi)cI  their  attendance,  as 
justices  of  the  peace  have.' 

;5  in.'{.  When  a  witness  attcndinij;  holore  a  justice,  in  any  cause, 
shall  reiuse  t(»  be  sworn,  in  any  form  prescribed  by  law,  or  to  answer 
any  i)ertinent  and  proper  (luestion  ;  ;iiid  the  party  at  whose  instance 
he  attended  shall  make  oath  that  the  testimony  of  such  witness  is  so  ^ 
far  material,  that  without  it  he  cannot  safely  ))roceed  to  trial,  such 
justice  may,  by  warrant,  commit  such  witness  to  the  jail  of  the  county.* 
Such  warrant  shall  specify  the  cause  for  which  such  warrant  was 
issued,  and  if  it  be  for  refusing  to  answer  any  question,  such  question 
shall  be  specified  therein  ;  and  such  witness  shall  be  closely  confined 
pursuant  to  such  warrant,  until  he  submit  to  be  sworn,  or  to  answer, 
as  the  case  may  be.^ 

^  194.  Every  person  duly  subpoenaed  as  a  witness  before  a  justice  of 
the  peace,  who  shall  not  appear,  or  appearing  shall  refuse  to  testify, 
shall  forfeit  for  the  use  of  the  poor  of  the  town  for  such  non-appear- 
ance or  refusal  (unless  some  reasonable  cause  or  excuse  shall  be  shown 
on  his  oath  or  the  oath  of  some  other  person,)  such  fine,  not  less  than 
sixty-two  and  a  half  cents,  nor  more  than  ten  dollars,  as  the  justice 
before  whom  the  prosecution  therefor  shall  be  had,  shall  think  reason- 
able to  impose.^  And  such  fine  may  be  imposed  by  the  justice,  if  the 
witness  be  present  and  have  an  opportunity  of  being  heard  against  the 
imposition  thereof.'  The  justice  imposing  any  fine  shall  make  up  and 
enter  in  his  docket  a  minute  of  the  conviction,  and  of  the  cause  thereof, 
and  the  same  shall  be  deemed  a  judgment  in  all  respects,  at  the  suit 
of  the  overseers  of  the  poor  of  the  town.®  Upon  the  imposition  of 
such  fine,  and  in  default  of  payment  thereof,  with  costs,  the  justice  shall 
forthwith  issue  an  execution  to  any  constable  of  the  county  directing 
him  to  levy  such  fine,  with  costs,  of  the  goods  and  chattels  of  the 
delinquent,  and  for  want  thereof  to  convey  him  to  the  jail  of  the  county, 
there  to  remam  until  he  shall  pay  such  fine  and  costs  ;  and  the  keeper 
of  such  jail  is  required  to  keep  such  delinciuent  in  close  custody,  in 
such  jail,  until  the  fine  and  costs  be  paid  ;  but  such  imprisonment 
shall  not  exceed  thirty  days.^  When  the  money  shall  be  collected  on 
such  execution,  the  constable  shall  return  the  same  to  the  justice,  and 
such  justice  shall  pay  over  the  amount  of  the  fine  imposed  to  the  over- 
seers of  the  poor  of  the  town  for  the  use  of  the  poor.^ 

1  2  R.  S.  455,  ^ICS,  4th  ed.     <  2  R.  S.  241,  ^85.  7  2  R.  S.  241,  C)88. 

Laws  1841,  ch.  138,  ^1.  Id.  440,  (yo,  4th  cd.  Id.  440,  <yS,  4th  od. 

2  2  R.  S.  274,  V|279.  5'2  R.  S.  241,v>86.  s  2  R.  S.  440,  ^80. 

Id.  450,  vUOy,  4th  cd.  M.  440,  ^^76,  4th  ed.  Id.  440,  ^79,  4th  ed. 

3  2  R.  S.  2'74,  V)280.  6  2  R.  S.  241,  (^S7. 

Id.  454,  ^200,  4th  ed.  Id.  440,  v  7, 4th  od. 


88     OFCOMrELLlNU  Till':  AT  rJCNDANCi:  ur  WITNESSKS. 

^  15)5.  If  any  person  who  has  lu'Pii  duly  siimmnnod  to  appoar  before 
any  justice  of  the  prace  to  tcsiify  in  aiiv  suit  pfiidin^  in  another  state, 
shall  refuse  or  neglect  to  appear  at  the  time  and  place  mentioned  in 
the  summons  ;  or  if,  on  his  a|>pearan('e,  he  shall  refuse  to  testify,  he 
shall  he  liahle  to  the  same  jienalties  as  would  he  incurred  for  a  like 
offence  on  the  trial  of  a  suit  in  a  justice's  court.' 

^  \\H\.  A  subpuMia  issued  hy  a  coroner  to  compel  the  attendance  of 
witnesses  upon  an  intpiest,"  or  ujion  the  examination  helbrc  him  of  one 
charged  uj^on  incpiest  with  crimes  cognizable  hy  him;'  or  by  a 
ma«:istrate  upon  the  examination  of  one  charged  with  crimes;  or  by 
a  court  of  sj)ecial  sessions,  or  by  a  justice  or  alderman,  returnable 
before  a  court  of  special  sessions,*  may  be  served  in  the  like  manner 
as  a  subprcna  issued  by  a  justice  of  the  [)eacc  in  a  civil  cause  ;  that  is, 
by  reading  the  same  to  the  witness,  or  slating  the  contents  thereof 
to  him  ;  but  no  fee  need  be  paid  in  any  such  case  to  such  witness.'' 
And  any  witness  subpa?naed  in  any  such  case,  who  shall  fail  to  apjiear, 
shall  be  liable  to  the  same  penalties  and  may  be  jiroceeded  against  in 
the  same  manner  as  is  provided  by  law  in  respect  to  witnesses  in 
courts  of  justices  of  the  peace.' 

3  197.  Whenever  any  magistrate  shall  issue  any  subpa-na  in  any 
criminal  proceeding  or  trial,  he  shall  indorse  upon  the  back  thereof  a 
memorandum  showing  whether  the  same  was  issued  for  the  people  or 
for  the  ])risoner ;  and  every  ollicer  or  other  person  who  shall  insert  the 
names  of  witnesses  in  a  subpoena  issued  for  the  i)eople,  intended  for 
the  prisoner,  with  intent  thereby  to  deceive  any  person,  or  to  obtain 
any  pay  as  lor  services  in  subpct-naing  witnesses  for  the  jjcople,  shall 
be  deemed  guilty  of  a  misdemeanor.^ 

^  198.  I'he  summons  issued  by  a  c<»unty  judge,  or  by  the  mavor  or 
recorder  of  any  city,  upon  the  aj)|tlication  of  any  one  who  contests  the 
election  of  any  member  of  the  senate  «»r  assembly,  or  to  support  such 
election  .so  contested,  shall  be  served,  by  delivering  a  copy  thereof  to 
each  witness  named  therein,  a  reasonable  time  before  the  day  on  which 
the  attendance  of  such  witness  is  recjuired;  and  by  paying  to  such 
witness  the  sum  allowed  to  witnesses  in  civil  suits  in  courts  of  record." 

3  199.  liilher  of  the  canal  commissioners,  or  apj)raiscrs  of  damages, 
may  issue  subpctnas  to  compel  the  attendance  of  witnesses  before  the 
board  of  aj)prai.sers  to  give  testimony  in  relation  to  any  matter  depend- 

•  2  R.  8.  on,  yJI.  lih  (Ml.         »  '2  II.  S.  7l!'.t,  <)r,r,.  7  u  K.  s.  hIM,  <y\(),  lih  .<<!. 

IrfWd  IH,'.!,  ell.   11»1,  ()3.  M.  '.M:«,  <}i)'.i,  4lli  cd.  Lawn  IHIA,  eh.  IHO,  ulH. 

«  2  R.  H,  74a.  <>3.  1*2  W.M.I.  273.  •  1  R.  8.  377,V>1 1, 1'J,  lih  cd. 

M.  '.rzr,,  «):t,  nil  .-.1.  •  'J  U.  S    lli^'/fyU),  41. 
»  2  U.  H  7»::,  <,1.  M,  'Mn.%ii),  41,  4llj  ed. 

Id.  '.>2r,,<)l,  4lli  i<\  2  U.  H.  f4:J,  ^4. 

*  2  U.  H.  710,  <y'J,.  Id.  y'.y»,  <)i,  4lh  cd. 

Id.  'JOl,  ^40,  4Ui  cd. 


OF  COMPELLTNr;  THF-  ATTRNDANCK  OF  VVITXESSKS.    89 

ing  before  such  board.'  Such  subpainas  may  be  served  in  the  sarDC 
manner  as  a  subpcrna  in  a  civil  suit  before  a  justice  of  the;  peace.  The 
witness  will  be  entitled  to  no  fees  until  he  shall  have  appeared  iji  pur- 
suance of  the  subiMLMia,  when  he  shall  receive  the  same  fees  as  are 
allowed  to  witnesses  lor  attending  courts  of  record  in  civil  suits,  to  be 
paid  by  the  claimants  lor  damages,  if  subpfjenaed  on  their  jiart,  or  by 
the  canal  commissioners,  if  subpoenaed  on  the  part  of  the  state.'' 

,^S  '-'()(>.  The  canal  board  may  recpiire  the  attendance  of  witnesses 
before  them  on  the  part  of  the  state,  if  in  their  opinion,  the  interests  of 
the  state  require  it ;  and  for  that  purpose  they  may  issue  subpcrnas 
to  be  signed  by  their  president  for  the  time  being,  which  shall  be  served 
by  any  sherilf  or  constable  by  said  board  thereunto  re(iuired  ;  who 
shall  be  paid  such  sum  therefor,  by  the  canal  commissioners,  or  the 
commissioners  of  the  canal  fund  as  may  be  deemed  just  and  reasonable 
for  such  service.^  No  mode  of  serving  such  subpoena  is  pointed  out; 
but  the  practice  is  to  read  or  state  the  contents  of  such  subfHima  to  the 
witness.  The  witness  is  not  entitled  to  any  fee  until  he  shall  have 
attended.  \ 

^  iiOl.  Every  court  of  record  shall  have  power,  upon  the  application 
of  any  party  to  a  suit  or  proceeding,  civil  or  criminal,  pending  in  such 
court,  to  issue  a  writ  of  habeas  corpus,  for  the  purpose  of  bringing 
before  the  said  court,  any  prisoner  who  may  be  detained  in  jail  or 
prison  within  this  state,  for  any  cause  except  a  sentence  of  felony,  to 
be  examined  as  a  witness  in  such  suit  or  proceeding,  in  behalf  of  the 
party  making  the  application.''  Such  writ  may  also  be  issued  by  any 
justice  of  the  supreme  court,  or  any  officer  authorized  to  perform  the 
duties  of  such  justice,  upon  tile  like  application  of  a  party  to  any  suit 
or  proceeding  pending  in  a  court  of  record,  or  pending  before  any 
officer  or  body  who  may  be  authorized  to  examine  witnesses  in  any 
suit  or  proceeding.^  Such  writ  may  also  be  issued  by  any  of  the 
officers  aforesaid,  upon  the  application  of  a  party  to  a  suit  before  any 
justice  of  the  peace,  to  bring  any  prisoner  confined  in  the  jail  of  the 
same  county,  or  the  county  next  adjoining  that  where  such  justice  may 
reside,  before  such  justice,  to  be  examined  as  a  witness.^  And  so  it 
may  be  allowed  by  any  referee  or  commissioner  under  the  statute 
concerning  proceedings  to  discover  the  death  of  persons  upon  whose 
lives  particular  estates  may  ilepend,  when  any  such  person  is  in  prison, 
or  is  kept  or  detained  by  any  other/ 

^  202.  Whenever  any  convict   confined  in  any  county   or   state 

>  1  R.  S.  488,  <^110,  4th  cd,     *  2  R.  S.  559,  ^1.  «  2  R.  S.  559,  $4. 

Laws  1829,  ch.  48,  ^5.  I<1.  T'.tl,  ^1,  4th  cd.  M.  791,  <>4,  4th  cd. 

2  1  R.  S.  489,  ^113,  4th  cd.      s  2  R.  S.  559,  ^3.  7  Wend.  132. 

Laws  1836,  ch.  287,  ^2.  Id.  791,  <>3,  4th  cd.  7  2  R.  S.  344,  ^7. 

3  1  R.  S.  492,  ^^138, 139,  4th  cd.  Id.  600,  ^7,  4th  cd. 

13 


9(1   OF  (^i)Mim:m-ing  thi'.  .\T'n:Ni).\\ci:  ov  wiTXi:ssr:s.' 

prison,  shall  be  considered  nii  iinpMrlant  witness  in  Itelialfof  tlie  people 
of  this  state,  upon  any  criminal  prosecution  aijainst  any  other  convict, 
by  the  district  attorney  conductinj,'  the  same,  it  shall  be  the  duty  of 
nnv  orticer  authorizetl  to  allow  writs  •»f  hnhms  corpus,  upon  the  aH'idavit 
of  said  district  attorney,  to  tyrant  a  writ  of  habeas  corpus  for  the  pur- 
pc»se  of  bringing  such  prisoner  before  the  proper  court  to  testify  ujion 
Kuoh  prosecution.'  And  whenever  it  shall  appear  to  the  court  in  which 
an  indictment  is  j»ondinp.  and  to  be  tried  against  any  person  for  any 
offence  conimitted  by  him  while  imprisoned  in  any  county  prison,  or 
any  one  of  the  state  prisons,  on  the  person  of  any  other  person  con- 
fined in  such  jail  or  state  prison,  that  any  other  person  confined  in  any 
comity  prison,  or  in  any  of  the  state  prisons,  is  an  important  witness 
in  behalf  of  the  person  so  indicted,  such  court  is  authorized  to  grant 
a  writ  of  habeas  corpus,  for  the  purpose  of  bringing  such  prisoner 
before  such  court  to  testify  ujK)n  the  trial  of  such  indictment,  in 
behalf  of  the  person  making  the  application.'^ 

(S  203.  No  sheriff,  coroner,  constable  or  marshal,  shall  be  retpjired 
to  obey  any  writ  of  habeas  corpus  unless  the  party  serving  the  same 
shall  tender  to  such  officer  the  fees  allowed  by  law  for  bringing  up 
such  prisoner  ;  nor  unless  he  shall"  also  give  a  bond  to  such  officer  having 
the  prisoner  in  charge,  in  a  penally  double  the  amount  of  the  sum 
for  which  such  prisoner  may  be  detained,  if  he  be  detained  for  any 
specific  sum  of  money,  and  if  not,  then  in  the  penalty  of  one  thousand 
dollars,  conditioned  that  such  person  will  pay  the  charges  of  carrying 
back  such  prisoner  if  he  shall  be  remanded,  and  that  such  prisoner 
will  not  escai)e  bv  the  way,  either  in  going  to,  or  returning  from  the 
place  to  which  he  is  to  be  taken.  But  no  such  payment  of  fees  or 
bond  shall  be  necessary  in  any  case  where  the  writ  is  sued  out  by  the 
attorney  general,  or  by  any  district  attorney.' 

5  20  i.  Whenever  any  writ  of  habeas  corpus  shall  be  issued  in  any 
uuch  case,  and  the  fees  have  been  paiil  or  lendereil,  and  a  sujlicicnt 
bond  has  been  given,  it  shall  be  the  duty  of  the  officer  to  whom  such 
writ  shall  be  delivered,  to  obey  and  return  the  same  according  to  the 
command  thereof,  in  the  manner  and  in  the  time  prescribed  by  law  ; 
and  every  officer  who  shall  refu.se  or  neglect,  so  to  do,  shall  forfeit 
to  the  |>eo])le  of  this  state,  where  the  writ  was  issued,  upon  the  applica- 
tion of  the  altoruey  general  or  district  attorney,  and  in  other  cases,  to 
the  parly  upon  whose  application  the  same  shall  have  issued,  the  sum 
of  five  hundred  dollars.*  If  the  writ  be  issued  by  ;t  court  or  officer 
of  competent  authority,  and  is  not  void  upon    its  face,  the  officer  will 

•  2  R  H.  "'■       ''  '    '•'      '       «  2  U.  fl   M'l,  <>'20.  i  6 John.  JW)?. 

t  i:  H  H  IJ.  VjZ,  (;!•;,  4ih  cd.  6  Cow.  176. 

»2R.  8.W..,  ,,.    ,  .. 
Id.  806,  ^^M,  Mb. 


TFIKIIl  DUTIES  AS  KEEPERS  OF  TIIi:  JAILS.  [){ 

be  bound  to  obey  it.*  The  oflicer  shuuld  not  only  brin^'  tbo  prisoner 
up  according  to  the  command  of  tlie  writ,  but  lie  shouhl  also  make 
return  to  tiie  writ  showing  by  what  authority  he  holds  him. 

(5  205.  When  the  olficer  shall  have  brought  up  a  |>ri.soner  in  any 
case  to  testily,  it  will  be  his  duty  to  keep  him  in  his  custody,  notwith- 
standing he  may  have  received  any  bond  to  idemnify  him  against  any 
escape;  and  the  sheritV  cannot  allow  hPm  to  go  elsewhere;  and  when 
he  is  not  wanted  he  must  take  him  back  to  jail  and  bring  him  up  again 
the  next  day  if  retpiired,  unless  the  jail  be  distant.' 

g  200.  Whenever  any  person  shall  be  in  execution  on  any  civil 
process,  or  committed  on  any  criminal  charge,  and  a  habeas  corfjus 
shall  be  issued  to  bring  up  the  body  of  such  prisoner  before  any  court 
to  testify,  or  to  answer  for  any  commitment  or  any  other  matter,  and 
it  be  returned  upon  the  writ,  tiiat  the  prisoner  is  charged  in  the  execu- 
tion, or  committed  as  aforesaid,  he  shall  be  remanded  after  having 
testified  ;  and  if  any  order  or  connnitment  be  made  against  such  pris- 
oner, he  shall  be  committed  to  the  prison  from  which  he  was  taken. ^ 

§  207.  When  it  shall  be  necessary  for  any  purpose,  to  bring  any 
prisoner  confined  in  a  county  jail,  before  any  court  of  oyer  and  terminer, 
or  any  court  of  sessions,  which  may  be  sitting  in  such  county,  such 
court  may  by  order,  and  without  issuing  any  writ  of  habeas  corpus, 
or  other  process,  direct  such  prisoner  to  be  brought  before  them 
accordingly.'  This  provision  applies  to  prisoners  confined  upon  crim- 
inal process,  and  not  upon  process  in  a  civil  action. 

CHAPTER  XIII. 

THEIR  DUTIES  AS  KEEPERS  OF  THE  JAILS. 

^  208.  The  common  jails  in  the  several  counties  of  this  state  shall 
be  kept  by  the  sheriffs  of  the  counties  in  which  they  are  respectively 
situated,  and  shall  be  used  as  follows  : 

1.  For  the  detention  of  persons  duly  committed,  in  order  to  secure 
their  attendance  as  witnesses  in  any  criminal  cases: 

2.  For  the  detention  of  persons  charged  with  crime,  and  committed 
for  trial ; 

3.  For  the  confinement  of  persons  duly  committed,  for  any  contempt, 
or  upon  civil  process,  and 

4.  For  the  confinement  of  persons  sentenced  to  imprisonment  therein, 
upon  conviction  for  any  offence.* 

^  209.  But  the  sheriff  of  the  city  and  county  of  New  York  shall 

>  10  Paige,  506.  3  2  R.  S.  747,  ^39.  <  2  R.  S.  940,  $1,  4th  ed. 

2  2  R.  S.  660,  ^5.  Id.  931,  ^46,  4th  ed.  1  R.  S.  380,  ^75. 

Id.  791,  ^5,  4th  ed.  Id.  697,  ^132,  4th  ed. 


9i        TiiHiR  nuTii:s  as  kkkphus  of  tiik  jails. 

have  the  ciisto<ly  of  the  jail  in  that  city  used  lor  the  conlint'iuent  of 
persons  committed  on  civil  j)rocess  only,  and  of  the  prisoners  in  the 
same. ' 

<S'210.  The  pcnik'iiliary  of  Ononchi^a  county  shall  he  used  for  all 
the  purjKises  of  a  jail  of  such  county,  and  the  superintendent  thereof 
shall  he  the  jailer  thereof,  and  shall  have  the  custody  and  control  of 
all  j>ersons  confuicd  therein,  as  the  sheritVof  said  county,  were  the  law 
relative  to  said  penitentiary  not  passed.  The  sherilV  of  said  county 
shall  retain  the  same  control  and  authority  over  all  prisoners  committed 
to  said  |»eiiiteiitiary  as  a  county  jail,  (except  such  as  are  liable  to  be 
sentenced  to  said  j)euitentiary,)  as  he  has  heretofore  had,  except  while 
they  are  confined  within  the  walls  of  said  })enitentiary,  and  he  shall 
have  power  at  all  times,  to  take  said  prisoners  t<»  and  from  said  peni- 
tentiarv,  when  required  or  authorized  to  do  so  by  law,  and  shall  have 
one  half  of  the  fees  for  receiving  and  discharging  the  said  prisoners 
that  he  now  has;  and  it  shall  be  the  duty  of  the  superintendent  of  said 
penitentiary,  to  keep  a  true  account  of  all  conunitments  and  discharges 
of  such  prisoners,  and  to  deliver  to  said  sherifl' a  copy  thereof,  certified 
by  him  every  three  months.  All  general  laws  now  in  force  regulating 
the  jails  of  the  respective  counties  of  this  state,  shall,  so  far  as  they  are 
consistent  with  the  act  aforesaid,  be  applicable  to  such  penitentiary,  in 
its  use  as  a  county  jail.  If  the  superintendent  shall  neglect  or  refuse 
to  give  and  file  the  bond  required  of  him,  he  shall  forfeit  the  office,  and 
in  case  of  a  vacancy  in  the  office  of  superintendent,  the  said  sherlT, 
shall  have  the  immediate  custody  of  and  control  of  said  jjcnitentiary 
and  the  i)risoners  therein,  until  another  sui)erintendcnt  shall  have-been 
ajjpointed  and  given  the  bond  aloresaid.'^ 

5  211.  The  sherifls  may  keep  the  jails  and  prisons  in  their  respective 
counties  themselves,  or  they  may  ap])oint  keepers  of  such  jails  and 
prisons,  for  whose  acts  they  shall  severally  be  resjjonsible.'  The  man- 
ner of  appointment,  and  the  character  and  duties  of  jailers  have  already 
been  brielly  pointed  out.* 

5  212.  The  sherilV  or  his  jailer  is  bound  to  have  sufficient  force  to 
prevent  a  breach  of  the  prison,  for  nothing  but  the  act  of  God,  or  an 
accidental  fire  in  the  jail,'  or  the  act  of  the  public  enemies,  will  excuse 
an  escape,  after  one  has  been  committed  to  jjrison.  ICven  breaking 
the  prison  by  mobs  or  rebels  is  not  an  answer  to  an  action  for  an  escape 
of  a  j)risoner  confined  on  civil  process.  On  the  •)ther  hand  the  jailer 
must  not  he  guilty  of  cruelty,  or  of  putting  debtors  in  ircms  without 
good  cause.*     The  killing  a  prisoner,  however,  who  assaults  him  when 

I  1  K  H    -^i'  '  ■•■  »  1  R.  H.  :mO,  ar>.  »  2  F.Hp.  N.  V.  CIO. 

1,1   f,  .-.J.  I<1  fV.iT.  <>18'i,  4th  cd.  •  '2  Wat.!.'}. 

»  Laws  1       .  -  ♦  AiiUj,  ch.  3. 


TFTI'IR  DIITIKS  AS  FCEKl'KRS  OF  TWV.  JAILS'.  93 

seeking  to  escape,  is  justifiable.  But  if  a  prisoner  ho  confiniul  against 
his  will,  with  another  who  has  the  small  pox,  and  he  catches  it  and 
dies,  it  is  said  that  it  will  he  murder  in  the  jailer.' 

^  2\ii.  It  shall  be  the  duty  of  the  keeper  of  each  county  prison  to 
provide  a  bible  for  each  room  in  the  prison,  to  be  kept  therein,  and  he 
shall,  if  practicable,  '-ause  divine  service  to  be  performed  for  the  benefit 
of  the  j)risoneis,  at  least  once  on  each  Sunday,  provided  that  there 
shall  be  a  room  in  the  jjrison  that  can  be  safely  used  for  that  purpose.'* 

^  '211.  No  sj)irituous  or  fermented  liquors  shall,  on  Jiny  pretence 
whatever,  be  sold  within  any  county  prison,  or  any  building  used  and 
established  as  a  jail,  nor  shall  any  kind  of  spirituous  or  fermented 
li(|Uor,  (except  cider  and  that  quality  of  beer  called  table  beer,  for 
prisoners  confined  on  civil  process,)  be  brought  into  any  county  prison 
or  jail  for  the  use  of  any  convict  or  person  confined  therein,  without  a 
written  permit,  signed  by  the  physician  to  such  prison  or  jail,  specify- 
ing the  quantity  and  quality  of  the  liquor  which  may  be  furnished  to 
any  convict  or  prisoner,  the  name  of  the  prisoner  for  whom,  and  the 
time  when  the  same  may  be  furnished  ;  which  permit  shall  be  delivered 
to  and  kept  by  the  keeper  of  the  prison.  No  such  permit  shall  be 
granted,  unless  it  shall  satisfactorily  appear  to  such  physician,  that  the 
lifjuor  allowed  to  be  furnished,  is  absolutely  necessary  for  the  health  of 
the  jtrisoner  for  whose  use  it  is  permitted ;  which  shall  be  specifically 
stated  in  the  permit.  And  every  person  who  shall  sell  or  bring  into 
any  prison  or  jail,  any  spirituous,  fermented  or  other  liquor,  contrary 
to  the  foregoing  provisions,  and  any  sheriff,  keeper  of  a  jail,  assistant 
to  such  keeper,  or  other  officer  employed  in  and  about  any  jail  or 
prison,  who  shall  knowingly  suffer  any  spirituous  or  other  liquor,  to  be 
sold  or  used  in  a  jail,  contrary  to  the  foregoing  provisions,  shall  be 
deemed  guilty  of  a  misdemeanor,  and  on  conviction  thereof,  shall  be 
subject  to  imprisonment,  not  exceeding  one  year,  or  to  a  fine  not 
exceeding  two  hundred  dollars,  or  both,  in  the  discretion  of  the  court; 
and  every  sheriff  or  other  officer  so  convicted,  shall  forfeit  his  office.^ 

(^  215.  If  in  any  county  there  shall  not  be  a  jail,  or  the  jail  erected 
'  shall  become  unfit  or  unsafe  for  the  confinement  of  prisoners,  or  shall  be 
destroyed  by  fire  or  otherwise,  the  county  court  of  such  county  shall, 
by  instrument  in  writing,  to  be  filed  with  the  clerk  of  the  county, 
designate  the  jail  of  some  contiguous  county,  for  the  confinement  of 
the  prisoners  of  their  county,  or  for  the  confinement  of  any  one  or  more 
of  such  prisoners,  which  shall  thereupon,  to  all  intents  and  purposes, 
except  as  herein  otherwise  provided,  become  the  jail  of  the   county 

•  Wat.  43.  3  2  R.  S.  431 ,  ^(>29,  30,  31. 

«  2  R.  S.  942,  $13,  4th.  Id.  674,  <)<yl<3.  30, 31, 4th  cd. 

Id.  969,  <)V155, 156, 157, 4th  ed. 


94  THEIR  DTTIKS  AS  KKKPHRS  OK  Tlli:  JAIl.S. 

for  which  it   sliall    have   been  so  dcsii^natiMl.    aiul    f«»r  the    |>ur|)Oses 
expresseil   in   such    inslrmnent.     Such  ilcsi^natitm  may  be   modified 
or  annulled   by  the  county  court  of  the  county,  by  which   the  same 
was    made,  on   the  ajjphcation  of   the    sljeritf  thereof,  by    an   order 
to  be  entered  in  the  minutes  of  such  court.     A  copy  of  such  instrument 
of  designation,  duly  certified  by  the  clerk  of  the  county,  under  his 
oflicial  seal,  shall  l)e  served   on  the   shcrifl'  and  keeper  of  the  jail  so 
desipiated  ;  whose  duty  it  shall  be.  from  thenceforth,  to  receive  into 
such  jail,  and  there  safely  keep  all  {)ersons  who  may  be  lawfully  con- 
fined therein,  juirsnant  to  the  foregoini^  provisions.     Such  sherilF  shall 
be  responsilile  for  the  safe  keejting  of  the  persons  so  committed  to  such 
jail,  in  the  same  manner  an«l  to  the  same  extent,  as  if  he  were  sheriff 
of  the  county  for  whose  use  such  jail  shall  have  been  designated,  and 
with  respect  to  the  persons  so  committed,  shall  be  deemed  the  sheriff 
of  such  county.     Whenever  a  jail  shall  be  erected  for  the  county  for 
whose  use  such  designation  shall  have  been  n)ade,  or  its  jail  shall  be 
rendered  fit  and  safe  for  the  confinement  of  j)risoners,  the  county  court 
of  the  county,  shall   by  an  instrument  in  writing,  to  be  filed  with  the 
clerk  of  the  county,  declare  that  the  necessity  for  such  designation  has 
ceased,  and  that  the  same  is  thereby  revoked  and  annulled.     And  the 
clerk  of  the  county  shall  immediately  serve  a  copy  of  such  revocation 
upon  the  sheriff  thereof,  whose  duty  it  shall  be  to  remove  the  prisoners 
belonging  to  his  custody,  and  so  confined  without  his  county,  to  his 
proper  jail.' 

g  21G.  The  sheriffs  of  any  of  the  counties  of  this  state,  in  which 
there  are  or  shall  be  established  more  than  one  jail,  may  confine  their 
respective  prisoners  in  either  of  such  jails,  and  may  remove  them  from 
one  jail  to  another  within  the  county,  whenever  such  sheriff  shall  deem 
it  necessary  for  their  safe  keeping,  or  whenever  it  shall  be  necessary 
for  their  appearance  at  any  court.  Whenever,  by  reason  of  any  jail 
being  on  fire,  there  shall  be  reason  to  apprehend  that  the'  prisoners 
confined  in  such  jail  may  be  injured  or  endangered  by  such  fire,  the 
sheriff  or  kee|)er  of  such  jail  may,  in  his  discretion,  remo\e  such  i»ris- 
oners  to  some  safe  and  convenient  place,  and  there  confine  them,  so 
long  as  may  be  necessary  to  avoid  such  danger ;  and  such  removal  and 
confinement  shall  not  be  deemed  an  escape  of  such  prisoners.  And 
whenever  any  pestilence  or  contagious  disease  shall  break  out  in  any 
jail,  or  in  the  vicinity  of  any  jail,  and  the  physician  to  such  jail  shall 
certify  that  such  pestilence  is  likely  to  endanger  the  health  of  the 
prisoners  confined  in  such  jail,  the  county  judge  of  the  county  in  which 
such  jail  is  situated,  or  in  the  city  and  county  of  New  York,  the  mayor 

»  2  R.  fl.  A'if^,%  M,  16,  10, 17,21,  22. 
Id.  G72,<>14,  Ac. 


TIIRIR  DUTIES  AS  KF.RPKRS  OF  THi:  JAILS.  95 

or  recorder,  or  any  alderman  of  the  city,  and  in  llie  city  and  county  of 
Albany,  the  mayor  or  recorder,  or  any  alderman  of  the  city  of  Albany, 
shall  in  writing  designate  some  safe  and  convenient  i)lace  within  such 
county,  or  the  jail  of  some  contiguous  county,  as  a  place  of  confinement 
of  such  prisoners  ;  which  designation  shall  be  filed  in  the  oilice  of  the 
clerk  of  the  county ;  and  shall  authorize  the  sherilV  to  remove  such 
prisoners  to  the  place  or  jail  so  designated,  and  there  confine  them,  until 
they  can  be  safely  returned  to  the  jail  from  which  they  were  taken. 
Any  i»lace  to  which  the  prisoners  in  any  jail  shall  be  removed,  pursuant 
to  the  preceding  provisions,  shall,  during  the  time  of  the  confinement 
of  such  jirisoners  therein,  be  deemed  the  jail  of  the  county.' 

§  211.  On  the  application  of  the  sherilf,  under-sherilV,  or  district 
attorney  of  any  county  of  this  state,  with  the  assent  of  the  county 
judge  of  such  county,  the  governor  may,  if  in  his  opinion  it  shall  be 
necessary  and  proper,  authorize  such  sherilf,  under-sherill"  district  attor- 
ney, or  some  deputy  sherifT  to  contract  with,  and  organize  a  guard  for 
the  protection  of  any  jail  or  prison  in  said  county,  or  to  arrest,  detain, 
or  have  in  safe  keeping  any  prisoner  or  prisoners,  or  to  enforce  any 
process,  judgment  or  decree  of  any  court;  which  application  and  ' 
authority  shall  be  in  writing,  and  a  copy  thereof  filed  and  recorded  in 
the  otlice  of  the  secretary  of  state.  The  said  written  authority  shall 
specify  the  number  beyond  which  the  guard  shall  not  extend.  The 
governor  may  at  any  time  revoke,  alter  or  modify  such  authority,  and 
he  mav  in  his  discretion,  permit  such  sherilf,  under-sheritV,  or  deputy, 
to  contract  with  any  uniform  company,  or  companies,  to  form  such 
sruard.  Such  cruard  when  so  formed,  shall  be  under  the  command  and 
direction  of  such  officer  or  officers  as  shall  be  designated  by  the 
governor,  and  in  case  he  shall  not  make  such  designation,  then  under 
the  command  of  the  sheriff,  under-sheriff,  or  deputy,  and  of  such  officer 
or  officers,  military  or  civil,  as  shall  be  designated  by  such  sheriff 
or  deputy ;  and  shall  be  subject  to  all  such  rules  and  regulations  for 
their  government  and  action  as  shall  have  been  agreed  upon  at  the 
time  of  the  organization,  or  afterwards  directed  by  the  governor ; 
and  the  governor  may  deliver  to  such  guard  any  amount  of  ammuni- 
tion or  cartridges  that  he  shall  think  proper  and  necessary.^ 

^  218.  Whenever  the  sheriff  of  any  county  shall  deem  it  necessary 
to  raise  a  temporary  guard  for  the  protection  of  a  jail  or  prison,  or  the 
safe  keeping  of  prisoners,  he  may  with  the  assent  of  the  county 
judge,  employ  such  temporary  guard  as  may  be  necessary,  until  a 
guard  can,  with  reasonable  diligence,  be  formed  and  organized  as 
prescribed  in  the   preceding  section  ;  the  expense  of  which  said  teni- 

»  2  R.  430,  ^V)24-27.  2  R.  S.  675,  ^<>33-37,  4th  cd. 

Id.  673,  <^V)24-27,  4th  ed.  Laws  1845,  ch.  69,  ^^2-6. 

Id.  941,  ^12,  4th  ed. 


90         rni:iR  m  riKs  \s  khkpeus  of  tiii:  jaii,s. 

porarv  guartl  shall  he  audited,  allowed  and  paid  hy  the  hoard  t>f  supervi- 
sors ot  said  county,  as  other  county  charges ;  as  well  as  tlje  expenses 
of  the  slieriir,  or  other  county  ollicer,  incurred  in  pursuan<-e  nt'  any 
of  the  provisions  of  the  foregoing  and  this  section.' 

^  vilU.  Kvery  shcritF  or  jailer  upon  whom  a  declaration,  notice,  or 
any  other  proceeding  directed  to  any  prisoner  in  his  custody,  siiall  be 
served,  shall,  within  five  days  thereafter,  deliver  the  same  to  such 
prisoner,  with  a  note  thereon  of  the  time  of  the  service  thereof  upon 
such  sheritV  or  jailer;  and  for  every  negle<*t  or  violation  of  this  duty, 
the  sheritV  or  jailer  guiltv  thereof,  shall  he  liable  to  such  prisoner  for 
all  damages  occasioned  thereby.^ 

^  220.  If  any  person  in  confinement,  under  indifttment,  or  under 
sentence  of  imprisonment,  or  under  a  criminal  charge,  or  for  want  ol 
bail  for  good  behavior,  or  for  keeping  the  ])eace,  or  for  appearing  as  a 
witness,  or  in  consequence  of  any  summary  conviction,  or  by  order  of 
any  justi<'e  ;  or  anv  prisoner  in  a  county  jail  other  than  those  who  are 
committed  for  contcinjit  or  on  civil  process,  shall  ajipear  to  be  insane, 
the  county  judge,  of  the  county  where  he  is  confined,  shall  institute 
careful  investigation,  call  two  respectable  |)hysicians  and  other  credible 
witnesses,  invite  the  district  attorney  to  aid  in  the  examination,  and  if 
he  deems  it  necessary,  call  a  jury,  and  for  that  purpose  is  fully  empow- 
ered to  compel  the  attendance  of  witnesses  and  jurors  ;  and  if  it  be  salis- 
factorilv  proved  that  the  prisoner  is  insane,  said  judge  may  discharge 
him  from  imprisonment  and  order  his  safe  (Custody  and  removal  to  the 
asylum,  where  he  shall  remain  until  restored  to  his  right  mind  ;  and 
then  if  the  said  judtre  shall  have  .so  directed,  the  sujierintendent  shall 
inform  the  said  judge  and  the  county  clerk,  and  district  attorney  thereof, 
so  that  the  person  so  confined,  may  within  sixty  days  thereafter,  be 
removed  to  prison,  and  criminal  proceedings  be  resumed,  or  otherwise 
discharged  ;  or  if  the  period  of  his  imprisonment  shall  have  expired  he 
shall  be  discharged.^ 

5  221.  If  a  person  imprisoned  on  attachment,  or  any  civil  pro- 
cess, or  for  the  non-payment  of  a  militia  fine,  become  insane,  the  county 
judge  of  the  county  where  he  is  confined,  sh.ill  iiistilule  like  proceed- 
ings in  his  case  as  are  required  in  the  cases  i)rovided  for  iji  the  pre- 
ceding se<*tion  ;  but  notice  shall  in  such  case  be  given  by  mail 
or  otherwise,  to  the  plaintifi"  or  his  attorney,  il  in  the  state;  ami  if  it 
shall  be  jtroved  to  the  s.'ilisfaction  of  said  judge  that  the  |)risoner  is 
in.sane,  he  niay  dis(diarge  him  from  imprisonment  and  order  him  into 
safe  cu.stody,  and  to  be  .sent  to  the  asylum;  nevertheless  the  creditor 
may   renew  his   process,  and   arrest  again  his   debtor   when   of  sane 

I  "  R  .S   C7f.  ',«'.l.    «  2R.  S. -ISl.Ua.  3 'J  K,  s.  17,  vJS,  tlh  c<l, 

Law*  1M6,  ■  .,  10.       Id.  074,^^16,  10,  4Ui  cd.        Id.  'M2,  <>]■{,  lili  .d. 

Laws  181::,  th.  1%,  ^32. 


THEIR  DUTIES  AS  KF.KPKUS  OF  TflR  .lAIT.S.  07 

miixl.'  'I'lic  Older  for  :i  discharpje  must  contain  a  direction  that  the 
l)risoner  be  sent  to  the  asylum,  or  it  will  be  void,  and  the  shcrifi*  if  he 
allows  such  prisoner  to  go  at  large,  will  be  liable  for  a  voluntary 
escape.'* 

g  222.  It  shall  be  the  duty  of  the  sherilf  and  keeper  of  carh  of  the 
jails  and  i)risons  to  admit  the  stale  prison  insi)ectors,  or  any  one  of  them, 
into  every  part  of  said  jail  or  prison  ;  to  exhibit  to  them,  on  demand,  all 
the  books,  papers,  documents,  and  accounts  pertaining  to  such  jail  or 
l)rison,  or  to  the  detention  of  persons  confined  therein  ;  and  to  render 
them  every  other  facility  in  their  power  to  enable  them  to  discharge 
their  duties,  and  to  enable  them  to  obtain  any  necessary  information  : 
the  said  inspectors  "shall  have  power  to  examine  on  oath,  to  be  admin- 
istered by  any  one  of  them,  any  of  the  keepers  or  officers  of  such  prison 
or  jails,  and  any  person  not  under  sentence  confined  therein,  and  to 
converse  with  any  of  the  prisoners  so  confined,  without  the  presence 
ofthekeepersthereof,  or  any  of  them.^  And  the  following  persons  shall 
also  be  authorized  to  visit  at  pleasure  all  county  and  state  prisons  :  The 
governor  and  lieutenant  governor,  secretary  of  state,  comptroller,  and 
attorney  general,  members  of  the  legislature,  judges  of  the  court  of 
appeals,  supreme  court,  and  county  judges,  district  attorneys,  and  every 
minister  of  the  gospel  having  charge  of  a  congregation  in  the  town 
wherein  any  such  prison  is  situated.  No  other  person  not  authorized 
bv  law,  shall  be  permitted  to  enter  the  rooms  of  a  county  prison  in 
which  convicts  are  confined,  unless  under  such  regulations  as  the 
sherifi"  of  the  county  shall  prescribe.'' 

CHAPTER  XIV. 

THEIR  DUTIES  AS  KEEPERS  OF  THE  JAILS  IN  CRIMINAL  CASES. 

g  223.  The  keepers  of  the  county  prisons  shall  receive  and  safely 
keep  every  person  committed  to  their  custody  for  safe  keeping,  exam- 
ination or  trial,  or  duly  sentenced  for  imprisonment  in  such  prison  upon 
conviction  for  any  contempt  or  misconduct,  or  for  any  criminal  offence  : 
and  shall  not  without  lawful  authority,  let  out  of  prison,  on  bail  or 
otiierwise,  any  such  person.* 

^  224.  When  a  prisoner  is  brought  to  the  jail  for  commitment,  by 
any  officer,  other  than  the  sheriff,  the  keeper  of  the  jail  should  first 
examine  and  ascertain  that  the  process  of  commitment,  which  must  be 
delivered  to  and  left  with  him,  is  regular  upon  its  face,  and  is  signed 
by  a  proper  officer.     And  if  the  same  is  in  due  form,  he  should   then 

'  2  R.  S.  47,  ^40,  4th  ed.        »  4  Com.  300.  <  2  R.  S.  070,  (»162,  4th  ed. 

Laws  1842,  ch,  135,  §33.  5  Uarb.  273.  s  2  R.  S,  941,  ^3,  4th  ed. 

3  2  R.  S.  943,  §20,  4th  ed. 

14 


98  'riii:iK  DUTiKis  as  Ki:i:i'i:iis  oi- 

mrtke  tho  necessary  examination  nml  in(|uiries  of  the  prisoner  and  of 
the  utricer  who  <leliv«Ms  such  juisoner  into  his  custody,  to  onal)lc  him 
to  make  the  entries  required  l>y  law  to  he  made  by  him  in  the  jail 
register,  as  mentioned  in  the  next  section. 

^  225.  It  shall  he  the  duly  of  the  keeper  of  each  counly  i)rison  to 
keep  a  daily  record  of  the  commitments  and  discharges  of  all  prisoners 
delivered  to  his  charge,  which  record  shall  exhibit  the  date  of  entrance, 
name,  otlence,  term  of  sentence,  fine,  age,  sex,  country,  color,  social 
relations,  parents,  habits  of  life,  cannot  read,  read  only,  read  and  write, 
well  educated,  classically  educated,  religious  instruction,  how  com- 
mitted, by  whom  committed,  state  of  health  when  comnritted,  how 
discharged,  trade  or  occujiation,  whether  so  employed  when  arrested, 
number  of  previous  convictions,  value  of  articles  stolen,'  and  when 
discharged,  when  let  to  bail  or  escape,  or  sentenced  lo  imprisonment 
in  the  state  prison,  and  when  removed. 

§  226.  Il  shall  be  the  duty  of  the  keepers  of  said  prison  to  keep  the 
prisoners  committed  to  their  charge,  as  far  as  may  he  practicable, 
separate  and  distinct  from  each  other,  and  prevent  all  conversation 
between  the  said  prisoners.  Male  and  female  prisoners,  (except  hus- 
band and  wife.)  shall  not  be  kept  or  put  in  the  same  room.  And 
prisoners  committed  on  criminal  process,  and  detained  for  trial,  and 
persons  committed  for  contempt,  or  upon  civil  process,  shall  be  kept 
in  rooms  separate  and  distinct  from  those  in  which  persons  convicted 
and  under  sentence  shall  be  confined  ;  and  on  no  pretence  whatever, 
shall  prisoners  detained  for  trial,  or  jnisons  committed  for  contempt, 
or  upon  civil  process,  be  kejit  or  put  in  the  same  room  with  convicts 
under  sentence.'  And  no  jxTson  who,  by  reason  of  lunacy  or  other- 
wise, is  furiously  mad,  or  so  far  disordered  in  his  mind,  as  to  be  dan- 
gerous if  permitted  to  go  at  large,  and  who  may  be  committed  as  a 
disorderly  person,  shall  be  confined  in  the  same  room  with  any  person 
charged  with  or  convicted  of  any  crime.  One  committed  under  the 
statute  against  profane  swearing,  shall  be  confined  in  a  room  separate 
from  all  other  jirisoners.' 

(5227.  But  i)risoners  detained  for  trial,  may  converse  with  their 
counsel  and  with  such  other  jjcrsons  as  the  keei)er,  in  his  discretion 
may  allow  ;  prisoners  imder  sentence  shall  not  be  permitted  to  hold 
any  conversation  with  any  person,  excej)t  the  keei)ers  or  inspectors  of 
the  prison  unless  in  the  presence  of  the  keej)er  or  inspector.* 

<5  22s.  Prisoners  detained  for  trial,  and  those  under  sentence,  .shall 
be  i«rovided  with  a  sulhcienl  (pianlity  of  inferior  but  wholesome 
food,  at  the  expense  of  the  county  :  but   jirisoners  dciaincrl   lor  trial, 


I  i:  R.  H.  942,  Clf>,  4lli  c«l.  »  1  II.  H.  074,  <f,Z. 

«  1:  K.  8.  'Ji\,(/yi,  £»,  0.  4th  c<l.     U  II.  8.  81,  ^07,  4th  id. 


*  2  11.  H.  '.tJl,  ^7,  4th  cd. 


%* 


THE  JAILS  IN  CIUMINAL  CASKS.  99 

may,  at  their  own  expense,  and  under  the  direction  of  the  keeper,  1)6 
sup|>hed  with  any  proper  articles  olTood.' 

^  229.  It  shall  he  tlje  duty  of  tlie  keeper  of  each  county  prison  to 
cause  each  prisoner  under  sentence,  except  such  as  are  under  sentence 
of  death,  to  be  constantly  employed  at  hard  labor  when  jiracticable, 
during  every  day  cxcei)t  Sunday,  and  it  shall  he  the  duty  of  the  county 
judge  or  of  the  inspectors  appointed  by  him,  to  prescribe  the  kind  of 
labor  at  which  such  prisoner  shall  be  employed,  and  the  keeper  shall 
account  at  least  annually,  with  the  board  of  supervisors  of  the  county 
for  the  proceeds  of  such  labor.  The  keepers  of  said  prisons  shall 
respectively  have  power,  with  the  consent  of  the  supervisors  of  the 
county,  from  time  to  time,  to  cause  such  of  the  convicts  under  their 
charge,  as  are  capable  of  hard  labor,  to  be  employed  upon  any  of  the 
public  avenues,  highways,  streets  or  other  works,  in  the  county  in 
which  such  jtrisoner  shall  be  confined,  or  in  any  of  the  adjoining  coun- 
ties, upon  such  terms  as  may  be  agreed  upon  between  the  said  keepers 
and  the  otlicers  or  other  persons  under  whose  direction  such  convicts 
shall  be  placed.  Whenever  any  convicts  shall  be  employed  as  above, 
they  shall  be  well  chained  and  secured  ;  and  shall  be  subject  to  such 
regulations  as  the  keeper  legally  charged  with  their  custody  shall 
from  time  to  time  prescribe.^ 

^  230.  After  the  court  of  oyer  and  terminer  shall  commence  its 
sittings  in  any  county,  no  prisoner  detained  in  the  common  jail  of  any 
such  county  upon  any  criminal  charge,  shall  be  removed  therefrom  by 
any  writ  of  habeas  corpus,  unless  such  writ  shall  be  made  returnable 
before  it.^ 

^  231.  When  it  shall  be  necessary  for  any  purpose,  to  bring  any 
prisoner  confined  in  a  county  jail,  before  any  court  of  oyer  and  termi- 
ner, or  any  court  of  sessions,  which  may  be  sitting  in  such  county, 
such  court  may  by  order,  and  without  issuing  any  writ  o{ habeas  corpus, 
or  other  process,  direct  such  prisoner  to  be  brought  before  them  accord- 
ingly.* 

(5  232.  Within  twenty-four  hours  after  the  discharge  of  any  grand 
jury,  by  any  court  of  oyer  and  terminer,  or  court  of  sessions,  it  sliall 
be  the  duty  of  such  court  to  cause  every  person  confined  in  such 
prison  upon  any  criminal  charge,  who  shall  not  have  been  indicted,  to 
be  discharged  without  bail,  unless  satisfactory  cause  shall  be  shown  to 
such  court  for  detaining  such  person  in  custody,  or  upon  bail,  as  the 
case  mav  require,  until  the  meeting  of  the  next  grand  jury  in  such 
county.''     But  persons  so  in  jail,  or  on  recognizance,  are  not  of  course 

>  2  R.  S.  941,  <)8,  4th  cd.         <  2  R.  S.  747,  ()39.  s  2R.  S.  944,  ^26,  4thcd. 

2  2  R.  S.  941,  ^<i)9-ll,  4th  cd.       Id.  930,^46,  4th  ed. 

3  2R.  S.944,  «i27,  4th  cd. 


-v^'-     «"^' 


m 


*c'^  /L^^^/cty. 


UH.)  Tiii:iii  DiTiFs  AS  ki«:i:im:us  ok 

cntilleil   Id  be   ilischargoil,  although   no   iiKlictnuiit   bo  louiul.     Tlicir 
disrharge  rests  in  the  di'srrclion  of  the  court.' 

^  2l\3.  Kvery  person  discharged  from  prison,  or  from  his  recogni- 
zance, in  consequence  of  no  indictn)ent  being  found  against  hitn.  or 
in  consecjuence  ot"  not  being  brought  to  trial,  and  every  person  acquitted 
on  trial,  shall  be  discharged  without  being  required  to  pay  any  fees.' 
^'-i'M.  It  shall  be  the  duty  of  every  keeper  of  each  county  prison,  to 
receive  into  the  |)rison  every  person  duly  coinn)illed  thereto  for  any 
offence  against  the  United  Slates,  and  to  confine  such  person  in  the 
prison  until  he  shall  be  duly  discharged,  the  Tnited  States  supporting 
such  person  during  his  coidinenient.  The  foregoing  provisions  relative 
to  the  nvxle  <d"  confining  prisoners  and  convicts,  shall  apply  to  all 
persons  so  committed  by  any  court  or  ollicer  of  the  United  Slates.^ 

^  iJ.So.  It  shall  be  the  duty  of  the  resjiective  keepers  of  each  of  the 
county  and  stale  prisons,  to  receive  into  the  said  i)risons,  and  safely 
keep  therein,  subject  to  the  discipline  of  such  prison,  any  criminal 
convicted  of  any  ollence  against  the  United  Stales,  sentenced  to  impris- 
onment therein,  by  any  court  of  the  United  Stales,  sitting  within  this 
stale,  until  such  sentence  be  executed,  or  until  such  convict  shall  be 
discharged  by  due  course  of  law  ;  the  United  States  sujiporting  such 
convict,  and  paying  the  expenses  attendant  upon  the  execution  of  such 
sentence.* 

§  "^'SG.  In  default  of  the  surety  required  by  any  justice  of  the  peace 
of  anv  disorderly  person  for  his  good  behavior,  such  justice  shall,  by 
warrant  under  his  hand,  commit  such  offender  to  the  common  jail  of 
the  citv  and  county.*  Such  person  may  be  discharged  by  any  two 
justices  of  the  peace  of  the  county,  upon  giving  such  sureties  for 
good  behavior  as  were  originally  required  from  such  olfender.'  After 
the  person  has  been  c(jnnnitted  to  the  jail,  one  justice  cannot  accept  the 
surety  originally  required  and  direct  the  discharge  of  the  prisoner.^ 

(^  237.  It  shall  be  the  duty  of  the  keeper  of  every  jail,  to  lay  before 
the  court  of  general  sessions  of  the  peace,  on  the  first  day  of  its  meet- 
ing, next  after  the  commitment  of  any  disorderly  jierson.  a  list  of  the 
persons  so  committed  and  then  in  his  custody,  with  the  nature  t>f  their 
oflences,  the  name  of  ihe  justice  conunittiiig  them,  and  the  time  of 
imprisonment.  Such  cf»urt  shall  inquire  into  the  circunisiances  of  each 
case,  and  it  may  discharge  such  disorderly  person  from  confinement, 
either  absolutely  or  upon  receiving  sureties  for  his  or  her  good  behavior, 
in  its  discretion ;  <>r  ibr  s.iid  court  may,  in  its  fiiscreiiou,  authorize  the 


I  2  Com.  R'i  *  .:  K   .M  [tCH,  ^148,  4th  ed.  •  1  H   S,  r,30,  (^(\. 

J  "  K    H  747,  <i'iH.  »  I  K   S  r,;{H,  <^2.  'I  U   S.  lA,  </.,  • 

Id.  'j:«).  ^4&.  4lli  «d.  -1  11   H.  r>;j,  %2,  4th  cd.  i  "J.l  Wind.  18. 

'  2  K.  8.  y42,  ^10,  4lb  cd  &  Darb.  206. 


TIIF-  JAILS  IN  CRIiMINAL  CASES.  101 

bindinfT  out  of  such  disorderly  j)ersoiis  as  shall  be  niinors,  in  some  lawful 
calling.  And  it  may  also,  in  its  discretion,  order  such  disorderly  person 
to  be  kept  in  the  common  jail  for  any  term  not  exceeding  six  months, 
at  hard  labor;  or  may  direct  that  during  any  part  of  the  imj.risonment, 
not  exceediuL';  thirty  days,  such  oflender  shall  be  kept  on  bread  and 
water  only.' 

g  238.  If  there  be  no  means  provided  in  such  jail  for  employing 
offenders  at  hard  labor,  the  court  may  direct  the  keeper  thereof  to 
furnish  such  employment  as  it  shall  sjjccify.to  such  disorderly  persons 
as  shall  be  committed  thereto,  either  by  a  justice  or  any  other  court, 
and  for  that  purpose,  to  purchase  any  necessary  raw  materials  and 
implements,  not  exceeding  in  amount  such  sum  as  the  court  shall  pre- 
scribe, and  to  compel  such  persons  to  perform  such  work  as  shall  be 
allotted  to  them.  The  expenses  incurred  in  pursuance  of  such  order, 
shall  be  paid  to  the  keeper  by  the  county  treasurer,  on  the  i)roduction 
of  the  order  of  the  county  court,  and  an  account  of  the  materials  pur- 
chased, verified  by  the  oath  of  the  keeper.  The  keeper  shall  sell  the 
produce  of  such  labor,  and  shall  account  for  the  first  cost  of  the 
materials  purchased,  and  for  one  half  of  the  surplus,  to  the  board  of 
supervisors,  and  pay  the  same  into  the  county  treasury  ;  and  the  other 
half  of  the  surplus  shall  be  paid  to  the  person  earning  the  same,  on  iiis 
or  her  discharge  from  imprisonment.  The  keeper  shall  account  to  the 
court  whenever  required,  for  all  materials  purchased,  and  for  the 
disposition  of  the  proceeds  of  the  earnings  of  such  oflenders.'^ 

^  239.  No  person  who,  by  reason  of  lunacy  or  otherwise,  is  furiously 
mad,  or  so  far  disordered  in  his  mind  as  to  be  dangerous,  if  permitted 
to  go  at  large,  shall  be  committed  as  a  disorderly  person,  to  any  prison, 
jail  or  house  of  correction,  or  confined  therein,  unless  an  agreement 
shall  have  been  made  for  that  purpose  with  the  keepers  thereof,  nor 
in  any  other  way  than  as  herein  directed ;  and  no  such  lunatic  or  mad 
person,  or  person  disordered  in  his  senses,  shall  be  confined  in  the  same 
room  with  any  person  charged  with  or  convicted  of  any  crime  ;  nor 
shall  such  person  be  confined  in  any  jail  more  than  ten  days,  but  shall 
be  sent  to  the  lunatic  asylum.  Any  overseer  of  the  poor,  constable, 
keeper  of  a  jail,  or  other  person,  who  shall  confine  any  such  lunatic  or 
mad  person  in  any  other  manner,  or  in  any  other  place  than  such  as 
are  herein  prescribed,  shall  be  deemed  guilty  of  a  misdemeanor,  and 
on  conviction  shall  be  liable  to  a  fine  not  exceeding  two  hundred  and 
fifty  dollars,  and  to  imprisonment  not  exceeding  one  year,  or  both,  in 
the  discretion  of  the  court  before  which  the  conviction  shall  be  had.' 

•  1  R.  S.  680,  ^^7-10.  3  1  R.  s.  624,  ^A  7, 11. 

2  R.  S.  54,  ^^7-10,  4th  cd.        2  R.  S.  38,  v>()6, 7, 11,  4th  cd. 
2  1  R.  S.  640,  V)<iill-13.  Laws  1842,  ch.  135,  (,20. 

2  R.  S.  55,  v^ll-13,  4th  ed.     2  R.  S.  44,  \)35,  4th  ed. 


102  TIIBlll  DLTIKSAS  KEEPERS  OK 

<5  -1(>.  Wlion  lliL'  reputed  father  «•!'  :i  bastard  is  committed  to  any 
jail,  he  shall  be  confined  therein,  without  being. entitled  to  the  liberties 
thereof.*  But  if  the  woman  marry  l)eforo  she  is  delivered  of  such 
child,  or  if  she  Khali  miscarry,  so  that  such  child  shall  not  be  born  alive, 
or  if  it  shall  appear  that  she  is  not  so  pregnant,  then  the  person  charged 
as  the  father  of  such  child  shall  be  discharged  fn»m  custody,  if  imprisoned 
by  the  court  of  sessions  of  the  county,  before  which  such  fact  shall 
apjx^ar;  or  shall  be  immediately  relieved  out  of  custody,  by  warrant 
under  the  hands  and  seals  of  the  justices  by  whom  he  was  committed, 
upon  such  fact  appearing  to  them.' 

^vJll.  If  the  mother  refuse  to  disclose  the  name  of  the  father  of 
such  bastard  or  child,  the  justice  or  justices  may,  after  the  exi)iralion 
of  one  month  from  the  time  of  her  delivery,  if  she  shall  be  sulHciently 
recovered,  commit  her  to  the  common  jail  of  the  county,  by  warrant 
under  his  hand,  or  the  hands  of  such  justices,  in  which  the  cause  of 
commitment  shall  be  distinctly  set  forth,  there  to  remain  until  she  shall 
testify  and  disclose  the  name  of  such  father.^  And  so  if  she  be  pos- 
sessed of  any  property  in  her  own  right  and  refuses  or  neglects  to 
support  the  child,  she  shall  be  coumiitted  to  the  couunon  jail  of  the 
county,  by  the  justices  who  made  the  order  requiring  her  to  supi>ort 
such  child,  there  to  remain,  without  bail,  until  she  comply  with  such 
order,  unless  she  shall  execute  a  bond  to  the  i)eopIe  of  this  state,  in 
such  sum  as  said  justices  shall  direct,  with  good  and  sufficient  sureties, 
to  appear  at  the  then  next  court  of  sessions,  in  the  said  county,  and 
not  to  depart  the  said  court  without  its  leave. ^  If  the  court  shall 
not  be  satisfied  that  such  woman  has  property  in  her  own  right,  it  shall 
discharge  her  from  her  bond,  and  if  in  custody  from  her  imprisonment.' 
If  the  court  allirm  such  order  it  shall  require  said  mother  to  execute  a 
bond,  in  such  sum  as  it  shall  prescribe.  If  she  shall  refuse  or  neglect 
to  execute  such  bond,  she  shall  be  committed  by  order  of  said  court 
to  said  jail,  there  to  remain  until  she  shall  execute  such  bond  or  bo 
discharged  by  the  court.' 

g  '-ilvi.  Whenever  any  person  shall  be  committed  to  prison  charged 
as  the  father  of  a  bastard,  or  t»l  a  cliild  likely  to  be  born  a  bastard,  and 
whenever  any  mother  of  a  bastard  shall  be  so  committed,  f«»r  their 
default  in  not  exouling  a  bond  to  support  such  child,  or  to  indemnify 
the  public,  it  shall  be  the  duty  of  the  court  of  sessions  of  the  county, 
to  inquire  from  time  t<)  time  info  the  cin-umstances  and  ability  (d*  such 
father  or  mother  to  support  such  bastard,  or  to  procure  sureties  to  be 
bound  with  either  of  them.     If  the  court  shall  at  any  time  be  satisfied 

>  1  R  8  646  <,\1.  »  1  K.  H.  010,  <>20.  '  1  U.  8.  040,  ^35. 

"  U  8  ryj  <A1   -llh  <(1.  '2  H   8  CO.  C/JO,  Jih  c(l.            '.:  H   8.  r,2,  <y\r,,  Uh  cd. 

a  1  K   H  0»M,t>:iO.  «  1  H   8.  •il.,,  (,-^2.  •  1  U   8.  f,»'.t.  <yW. 

2  U   8.  01,  ^W,  llh  cJ.  i:  U.  8.  GU,  (/22,  4th  cd             2  11.  8.  C^.^iJO,  4th  cd. 


Till-:  JAILS  IN  ClilMlXAL  CASES.  103 

that  such  father  or  mother  is  wholly  unable  to  support  such  child,  or  to 
contribute  to  its  support,  or  to  ])rocurc  sureties  to  be  bounil  with  either 
of  them,  the  said  court  may,  in  its  discretion,  order  such  fath(;r  or 
mother  to  be  dis(^harge(l  iVom  sudi  iniprisoniiKMit.  Ibit  ncitiicr  of 
them  when  so  committed  shall  be  discharged  from  imitrisonment  under 
or  by  virtue  of  any  insolvent  act,  or  other  act  for  the  relief  or  discharge 
of  imprisoned  debtors,  or  in  any  other  way,  until  discharged  by  the 
court  of  sessions  of  the  c-ounty.' 

§  213.  Where  an  apprentice  shall  refuse  to  serve  according  to  the 
terms  of  his  contract  or  indentures,  his  master  may  apply  to  any  justice 
of  the  peace  of  the  county,  or  to  the  mayor,  recorder,  or  any  alderman 
of  i\\e  city,  where  he  shall  reside,  who  shall  be  authorized  by  warrant 
or  otherwise,  to  send  for  the  person  so  refusing,  and  if  such  refusal  be 
persisted  in,  to  commit  such  person,  by  warrant  to  the  bridewell,  house 
of  correction,  or  common  jail  of  the  city  or  county,  there  to  remain 
until  such  person  will  consent  to  serve  according  to  law.  On  com- 
])laint  being  made  on  oath,  by  any  master,  touching  any  misdemeanor 
or  ill  behavior  of  any  such  person,  to  any  two  justices  of  the  peace  of 
the  county,  or  to  the  mayor,  recorder  and  alderman  of  any  city,  or 
to  any  two  of  them,  it  shall  be  their  duty  to  cause  the  person  com- 
plaineil  of,  to  be  brought  before  them,  and  to  hear,  examine,  and  deter- 
mine the  complaint.  If  the  complaint  appear  to  be  well  founded,  the 
officers  may  by  warrant,  commit  the  offender  to  the  house  of  correction, 
or  to  the  common  jail  of  the  county,  for  any  term  not  exceeding  one 
month,  there  to  be  employed  in  hard  labor,  and  to  be  confined  in  a 
room  with  no  other  person.^ 

^  244.  Whenever  any  recovery  shall  be  had  before  a  justice  of 
the  peace,  for  any  penalty  or  forfeiture  incurred  by  violating  any 
provision  contained  in  the  ninth  title  of  the  twentieth  chapter  of  the 
first  part  of  the  Revised  Statutes,  which  is  entitled  "  Of  excise,  and  the 
regulations  of  taverns  and  groceries;"  or  for  any  penalty  or  forfeiture 
incurred  by  violating  any  provision  contained  in  the  eleventh  title  of 
the  same  chapter,  relating  to  fisheries,  execution  shall  issue  thereon 
immediately,  and  the  justice  shall  indorse  upon  such  execution,  the 
cause  for  which  such  judgment  was  rendered  ;  and  in  case  no  goods 
or  chattels  can  be  found  to  satisfy  such  execution,  the  constable  having 
the  same  shall  commit  such  defendant  to  the  jail  of  the  county,  and 
shall  deliver  to  the  keeper  thereof  a  certified  copy  of  such  execution 
and  indorsement ;  by  virtue  of  which,  such  keeper  shall  detain  such 
defendant  for  a  period  not  exceeding  sixty  days,  without  allowing  him 
the  benefit  of  the  liberties  of  such  jail.^ 

»  1  R.  S.  650,  ^"^41-44.  2  2  R.  S.  159,  ^(>29-31.  3  2  R.  S.  251,  ^143. 

2  R.  S.  63,  ^§41-44, 4th  cd.      Id.  343,  v;^29-31,  4th  cd.         Id.  447,  ^126,  4th  ed. 


101  Tlli:ill  DUTIF.S  AS  KRHPHRS  OK 

^  '^ l.'>.  Whenever  a  judmneiil  shall  be  (dtlained  l)et"oie  a  juslice  ol 
the  peace  for  a  penalty  or  forfeiture  under  the  statutes  relative  to  the 
manufacture  of  sail,  and  an  execution  is  issued  thereon,  and  the  olhcer 
having  the  exccuti<»n  is  unahle  to  make  the  same  out  of  any  pro|>erty 
of  the  defendant,  he  shall  commit  the  defendant  to  the  jail  of  the  county, 
where  ho  shall  remain  confined,  within  the  walls  of  the  jail,  without 
bail,  for  the  term  of  sixty  days,  unless  he  shall  sooner  pay  or  satisfy 
such  execution  ;  and  every  execution  so  issued,  shall  contain  a  clause 
ordering  the  defendant  to  he  imprisoned,  as  above  specified,  unless 
propcrtv  whereon  to  levy  such  execution  shall  be  found  by  the  ofiicer 
to  whonj  the  same  shall  be  directed.  If  at  any  time,  any  defendant  so 
committed  to  jail,  shall  be  found  without  the  walls  of  the  jail,  it  shall 
be  deemed  an  escaj)e,  and  the  sheriflT  shall  be  liable  for  the  amount  due 
on  the  execution.' 

^  24C.  Whenever  a  judgment  shall  be  recovered  in  a  court  of  record 
for  any  penalty  or  forfeiture  incurred  under  the  said  statutes  relative 
to  the  manufacture  of  salt,  and  an  execution  thereon  against  property 
shall  have  been  returned  unsatisfied,  in  whole  or  in  part,  the  defendant, 
upon  anv  execution  against  his  body,  shall  be  imprisoned  within  the 
walls  of  the  j)rison  in  the  manner  pointed  out  in  the  preceding  section, 
one  day  for  each  dollar  in  the  penalty  recovered  in  such  cause,  and 
remaining  unpaid,  without  bail,  unless  he  shall  sooner  satisfy  such 
execution.  If  at  any  time  any  defendant  so  committed  to  jail  shall  be 
found  without  the  walls  of  the  jail  before  he  is  entitled  to  his  discharge, 
it  shall  be  deemed  an  escape,  and  the  sheriff  shall  be  liable  for  the  amount 
due  on  the  execution.* 

;3  '-in.  Whenever  execution  shall  be  issued  ujxin  judgments  recov- 
ered in  actions  for  penalties  for  any  trespass  upon  any  lands  belonging 
to  the  people  of  this  state,  or  upon  any  Indian  lands,  and  the  body  of 
any  defendant  shall  be  arrested  thereon,  he  shall  be  imprisoned  accord- 
ing to  law,  without  being  entitled  to  the  liberties  of  the  jail.^ 

^  'JIH.  When  any  land  shall  have  been  sdM  under  execution,  and  the 
j)erson  against  whose  property  such  execution  shall  have  issued,  or  any 
person  who  may  be  in  possession  <>f  the  premises  so  sold,  shall  have 
violated  any  order  of  a  justice  <jftlie  suitrcme  court,  or  county  judge 
restraining  such  |)crson  from  committing  waste  uj)on  su«'h  lands,  ujjon 
salijifaclory  proof  of  such  violation,  the  court  or  officer  shall  issue  a  war- 
rant to  the  sherifl'  of  the  cotmty,  reciting  such  order,  and  the  proof  of  the 
violati(;n  thereof,  and  thereby  command  such  sheriff  to  commit  such 
defendant  to  close  confinement  for  such  term,  not  more  than  one  year, 
as  shall  be  deemed  expedient ;  and  the  sheriff  shall  execute  such  warrant 

'  1  H  H.  270,  <,<,\r>'j,  100         » 1  K  H.  r,r, J, (/,2:<2, 233, -nil  ofl.  »  1  K.  8.  2(Kt,  <)ir,. 
Id.  664,  V^i»V,:«l,  Uh  c-d.       Laws  iK'ji.ch.  2U1,^<>1H,  I'J.     Id.  402,  y.tl,  llli  ed 


TUK  JAILS  IN  CRIMINAL  CASES.  105 

accordinf^Iy,  and  shall  commit  the  person  named  therein,  without  allow- 
ing him  the  lihorties  of  the  jnil.  But  such  court  or  olhcer  so  rommittinp 
such  prisoner  may  release  hiin  from  confinoment  at  any  time,  u[>on 
receiving  a  bond  with  tlio  cnnditions  prescrjlicd  in  the  statute.' 

,§  !240,  Every  court  of  record  shall  have  | tower  to  ))unish  as  for  a 
criminal  contempt  of  such  court.  Such  punishment  may  be  by  fine 
or  by  imprisonment  in  the  jail  of  the  county  where  the  court  may  be 
sitting,  or  both,  in  the  discretion  of  the  court,  but  the  fine  shall  in  n(» 
case  exceed  the  sum  of  two  hundred  and  fifty  dollars,  nor  the  impris- 
onment thirty  days ;  and  where  any  person  shall  be  committed  to 
jirison  for  the  non-payment  of  any  such  fine,  he  shall  be  discharged  at 
the  expiration  of  thirty  days.*  Whenever  any  person  shall  be  com- 
mitted for  any  such  contempt,  the  particular  circumstances  of  his 
offence,  shall  be  set  forth  in  the  order  or  warrant  of  commitment.^ 

^  250.  Every  court  of  record  shall  have  power  to  punish  any 
neglect  or  violation  of  duty,  or  any  misconduct,  by  which  the  rights 
or  remedies  of  a  party  in  a  cause  or  matter  depending  in  such  court, 
may  be  defeated,  impaired,  impeded  or  prejudiced,^  by  fine  and  impris- 
onment, or  both,  as  the  nature  of  the  case  shall  require.''  If  an  acHial 
loss  or  injury  shall  have  been  produced  to  any  party  by  the  misconduct 
alleged,  a  fine  shall  be  imposed  sufficient  to  indemnify  such  party,  and 
to  satisfy  his  costs  and  expenses,  which  shall  be  paid  over  to  him,  on 
the  order  of  the  court.^  In  all  other  cases  the  fine  shall  not  exceed 
two  hundred  and  fifty  dollars,  over  and  above  the  costs  and  expenses 
of  the  proceedings.^  When  the  misconduct  complained  of,  consists  in 
the  omission  to  perform  some  act  or  duty,  which  it  is  yet  in  the  power 
of  the  defendant  to  perform,  he  shall  be  imprisoned  only,  until  he  shall 
have  performed  such  actor  duty,  and  paid  such  fine  as  siiall  be  imposed, 
and  the  costs  and  expenses  of  the  proceedings.^  In  such  case  the  order 
or  process  of  commitment  shall  specify  the  act  or  duty  to  be  performed, 
and  the  amount  of  the  fine  and  expenses  to  be  paid,'  In  all  other 
cases,  where  no  special  provision  is  made  by  law,  if  imprisonment  be 
ordered,  it  shall  be  for  some  reasonable  time,  not  exceeding  six  months, 
and  until  the  expenses  of  the  proceedings  be  paid  ;  and  also,  if  a  fine 
be  imposed,  until  such  fine  be  paid;  and  in  the  order  and  process  of 
commitment,  the  duration  of  such  imprisonment  shall  be  expressed." 
But  no  person  shall  be  imprisoned  for  the  non-payment  of  inlerlocu- 

1  2  R.  S.  3.37,  <^<)23-20.      *  2  R.  S.  634,  ^1.        7  2  R  S.  538,  «J22. 

Id.  593,  ^^18-24,  4th  cd.    Id.  7G8,  ^1,  4th  cd.        Id.  772,  ^22,  4th  ed, 

2  2  R.  S.  278,  ^^10,  11.       Id.  540,  ^^34-36.        8  2  R.  S.  538,  ^)23. 

Id.  467,  ^^8,  y,  4th  ed.     Id.  77:'.,  (^^34-36,  4th  ed.    Id.  77.3,  <)'13,  4th  ed. 

3  2  R.  S.  278,  ^13.         5  2  R.  .S.  538,  ^20.        »  2  R.  S.  538,  ^i. 

Id.  467,  ^11,  4th  ed.       Id.  771,  ^20,  4th  cd.       Id.  772,  ^24,  4th  cd. 
6  2  R.  S.  538,  ^21.         10  2  R.  S.  538,  ^2-5. 
Id.  771,  V21,  4th  ed.       Id.  772,  ^25,  4th  cd. 

15 


lOG  Tiii:iu  Di'i'iKs  AS  Kt:i:i'i:iis  of 

tory  costs,  or  for  contempt  of  court  in  not  ]>nying  costs,  except  attorneys, 
solicitors  and  counsellttrs,  an<l  officers  of  court,  when  ordered  to  pay 
cosls  for  misconduct  as  sucli,  and  witnesses  when  ordered  to  pay  costs 
on  attachment  for  non-attendance.' 

3  'J."»l.  If  any  witness  attcndinji  before  any  judire,  ollicer  or  com- 
missioner, pursuant  to  a  summons,  or  brought  before  them,  or  cither  ot 
them,  shall  with(tul  reasonable  cause,  refuse  to  be  examined,  or  to 
answer  any  legal  and  pertinent  question,  or  to  subscribe  his  deposition 
after  the  same  has  been  reduced  to  writing,  the  ollicer  issuing  such 
summons,  shall,  by  warrant,  commit  such  witness  to  the  common  jail 
of  the  county,  in  which  he  resides,  there  to  remain  until  he  submits  to 
be  examined,  or  to  answer,  or  to  subscribe  his  deposition,  as  the  case 
may  be,  or  until  he  be  discharged  according  to  law."  Every  such 
warrant  of  commitment  shall  sj^ecify  therein  particularly  the  cause  of 
such  commitment,  and  if  such  commitment  be  for  refusing  to  answer 
any  question,  such  question  shall  be  stated  in  the  warrant.'  In  the 
case  of  a  witness  to  a  deed  who  refuses  to  appear  or  answer,  he  may 
be  committed  to  prison  by  the  oiricer,  there  to  remain  without  bail, 
and  without  the  liberties  of  the  jail  until  he  shall  submit  to  answer  on 
oath.* 

§  252.  Any  person  brought  before  an  officer  or  judge  under  his 
warrant,  issued  under  the  statute  concerning  the  examination  of  insol- 
vent debtors,  who  shall  refuse  to  be  sworn,  or  to  answer  satisfactorily 
all  lawful  cpiestions  put  to  him,  or  shall  refuse  to  sign  the  examination, 
not  li:iving  a  reasonable  objection  thereto,  to  be  allowed  by  such 
ofticer,  the  ofhcer  shall  by  warrant  commit  such  person  to  prison,  there 
to  remain  without  bail,  until  he  shall  submit  to  be  sworn  or  to^ answer 
as  required,  or  to  sign  such  examination  :  in  which  warrant  the  partic- 
ular default  of  the  person  committed  shall  be  specified  ;  and  if  it  be. 
in  not  answering  any  question,  such  question  shall  also  be  specified 
therein.  If  any  person  so  committed  shall  bring  a  writ  of  habeas  corpus, 
he  shall  not  be  discharged  by  reason  of  any  insuflicicncy  in  the  form 
of  the  warrant  of  commitment :  but  the  court  or  ollicer  before  whom 
such  person  shall  be  brought,  sirall  recommit  such  person,  unless  it 
shall  be  made  to  ai)pear  that  he  hath  answered  all  lawful  questions  put 
to  him,  or  had  sufficient  reason  for  refusing  to  sign  the  examination,  as 
the  case  may  be  ;  or  unless  such  person  shall  then  answer,  on  oath,  the 
questions  so  put  to  him.  And  any  sheriff  or  jailer  wilfully  suffering  any 
person  so  committed,  or  reconnnitted,  pursuant  to  the  foregoing  provi- 
sions to  escape,  shall  be  liable  to  indictment  for  a  misdemeanor  ;  and  on 

I  2  U  8.  fi^r*.  ^1.  »  '2.  K   H.  -101 ,  (,17.  »  2  R.  8.  402,  ^IS. 

Id  im  U, -llJufl  I'l   <.»7,  (>'.o,  IMifd.  I'l   017,  (/',1,   Ith  0(1. 

Laws  mi,  ch.  a-JO,  V2.  1  K  H  7r.M,  <A.\.  «  1  U.  H.  7Ah.  (,14, 

2U.  H.   107,  ^20, 'Ithcd.  2  K.  8.  Ku,  (,20,  4lh  ed. 


THE  JAILS  IN  CRIMINAL  CASES.  107 

conviction  tlicveof,  in  addition  to  any  other  punishment  the  court  nnay 
inflict,  shall  forfeit  tr)  the  trustees  a  sum.efiual  to  the  whole  amount  of 
debts  due  to  tlio  creditors  of  such  debtor,  not  exceeding  two  thousand 
five  hundred  dollars.' 

^  253.  I'uiiisluncnt  as  for  criminal  contempts  before  justices  of  the 
peace,  may  be  by  fme  not  exceeding  twenty-five  dollars,  or  by  impris- 
onment in  the  county  jail  not  exceeding  five  days,  or  both,  in  the 
discretion  of  the  justice.  But  no  person  shall  remain  imprisoned  for 
the  non-payment  of  such  fine,  more  than  ten  days ;  and  the  warrant 
of  commitment  for  any  contempt,  shall  set  forth  the  particular  circum- 
stances of  the  offence,  or  it  shall  be  void.'^ 

^  '254.  When  a  witness  attending  before  any  justice,  in  any  cause, 
shall  refuse  to  be  sworn,  in  any  form  prescribed  by  law,  or  to  answer 
any  pertinent  and  proper  question,  and  the  party  at  whose  instance  he 
attended,  shall  make  oath  that  the  testimony  of  such  witness  is  so  far 
material,  that  without  it  he  cannot  safely  proceed  in  the  trial  of  such 
cause,  such  justice  may  by  warrant  commit  such  whness  to  the  jail  of 
the  county.  Such  warrant  shall  specify  the  cause  for  which  the  same 
is  issued,  and  if  it  be  for  refusing  to  answer  any'question,  such  question 
shall  be  specified  therein;  and  such  witness  shall  be  closely  confined 
pursuant  to  such  warrant,  until  he  submit  to  be  sworn  or  to  answer 
as  the  case  may  be.^ 

^  255.  All  sheriffs,  jailers  and  constables,  are  required  to  execute  any 
precept  issued  by  the  president  of  any  court  martial  or  of  any  court  of 
inquiry,  for  the  purpose  of  procuring  the  attendance  of  witnesses,  for 
compelling  witnesses  to  be  sworn,  and  to  testify  and  preserve  order.* 
And  any  person  who  shall  be  guilty  of  disorderly,  contemptuous  or 
insolent  behavior,  or. use  any  insulting  or  contemptuous  or  indecorous 
language  or  expression  to  or  before  any  court  martial  or  court  of 
inquiry,  or  any  member  of  either  of  such  courts,  in  open  court,  may  be 
committed  to  the  jail  of  the  county  in  which  such  court  shall  sit,  by 
warrant  under  the  hand  and  seal  of  the  president  of  such  court,  or  in 
his  absence,  of  that  of  the  senior  officer  present  and  presiding.^  Such 
warrant  shall  be  directed  to  the  sheriff  or  any  or  either  of  the  con- 
stables or  marshals  of  any  such  county,  or  any  officer  attending  the 
court,  and  shall  conmiand  the  officer  to  whom  it  is  directed  to  take 
the  body  of  such  person  and  commit  him  to  the  jail  of  the  county,  there 
to  remain  without  bail  or  mainprize,  in  close  confinement,  for  a  time 
to  be  limited,  not  exceeding  three  days,  and  until  the  officer's  fees  for 

'  2  R  S  43  ^<\V2-16.  3  '2  R.  S.  274,  v<)279,  280.    s  i  R.  s.  311,  ^29. 

Id  22-^  ()dil8  4th  cd.    Id.  4.59,  (>()199,  200, 4th  cd.   Id.  616,  ^19,  4th  ed. 
i  2  R.  S.  274,  ^-llo,  278.    ♦  1  R.  S.  308,  ^27.  Laws  1854,  p.  1062,  $44. 

Id.  459,  mVro,  198,  4th  ed.    Id.  015,  $17,  4th  ed. 

Law3l854,  p.  1061,  $40. 


108  'rni:iii  di  tii:s  as  kkkphrs  ok 

I'onirnitting,  aiul  tlie  jailer's  Ices  are  imid.'  And  such  sheiifl'  shall 
receive  the  bcxiy  of  any  person  who  shall  bo  brought  to  him  by  virtue 
of  such  warrant,  and  kcephiui  until  the  ortircr's  and  jailer's  fees  shall 
be  paid,  or  until  the  olVender  be  discharged  by  due  course  of  law." 

5  '250.  All  prisoners  coiiuMilled  to  any  jail  upon  process  for  contempt, 
or  committed  for  misconduct  in  llie  cases  prescribed  by  law,  shall  be 
actually  confined  and  detained  within  such  jail,  until  they  shall  be 
thence  discharged  by  due  course  of  law,  or  shall  be  removed  to  some 
other  jail  or  place  of  confinement,  in  ihc  casts  jirovided  by  law,  and 
if  any  shcrifVor  keeper  of  a  jail,  shall  i)errnil  or  sulTer  any  prisoner  so 
committed  to  jail  for  contempt,  to  go  or  be  at  large  out  ol"  his  ju-ison, 
except  by  virtue  of  some  writ  of  habeas  corpus,  or  rule  of  court,  or  in 
such  other  cases  as  may  be  provided  by  law,  he  shall  be  liable  to  the 
party  aggrieved,  for  his  damages  sustained  thereby,  and  shall  be  deemed 
guilty  of  a  misdemeanor.^  When  a  prisoner  is  so  committed  to  jail  as 
a  punishment  for  misconduct,  he  must  be  kept  in  prison  in  the  common 
jail  of  the  county,  and  in  that  part  of  the  building  appropriated  for  the 
prisoiT,  and  in  the  same  manner  as  by  law  jxirsons  are  required  to  be 
imprisoned  and  detained  who  are  charged  with  criminal  otl'ences,  or 
who  are  committed  for  trial.  And  where  one  is  so  committed  to  prison, 
it  will  be  an  escape  if  the  sherilT,  instead  of  so  confining  him  allows 
him  to  occupy  the  sheriff's  sitting  room.  Such  room  is  no  part  of  the 
jail  though  under  the  same  roof.*  The  duties  of  the  sheriff,  when  any 
prisoner  in  jail  is  brought  out  u\)on  habeas  corpus,  will  be  pointed  out 
m  the  chapter  treating  of  his  duties  generally,  under  writs  of  habeas 
corpus. 

;5  *J57.  When  one  is  committed  l''>r  non-payment  of  a  fine  imposed 
upon  him  for  contempt  of  the  court :  or  when  he  is  imprisoned  for  the 
non-performance  of  some  act  or  duty  which  it  is  in  his  power  to 
j>erform,  he  cannot  be  discharged  from  the  imprisonment  on  executing 
an  assignment  of  his  property  to  the  creditor  ;*  nor  can  he  be  discharged 
in  such  case,  by  any  officer  under  any  insolvent  law.  or  bankruj)t  law.* 
If  he  is  committed  for  the  non-payment  of  a  fine  for  the  breach  ol  an 
injunction,  he  cannot  be  discharged  until  the  fine  is  paid,  withcnit  the 
consent  of  the  injured  party.'  Hut  the  warrant  of  commitment  must 
show  ui)on  its  face  that  the  defendant  was  convicted  ol  a  contempt, 
and  that  the  sum  he  was  ordered  t(.  pay  was  a  fine  imposed  upon  him 
on  such  conviction,  and  not  costs  merejy,  else  the  sheriff  will  not  be 
liable  for  allowing  him  the  benefit  of  the  liberties  of  the  jail.' 

'  1  u.  H  :jn,  </{0.  i  -2  K.  M  4;;7,  ^r.i.  •  lo  I'.-iiK*-,  '^*- 

M  010  <\'J0,  4lh  i!d.  M   r.Ml,^81,  4lh  ed.  7  7  raiRc,  304. 

Laws  1864,  p    10C2,  ^45.      ♦  10  l'aiK«-.  0<)C.  «  4  Paige,  2«2. 

2 1  H  H  an.<>ai.  »  ai'aigf,  38. 

Id.  010,  ^•^l,4lh  cd. 
Laws  1864.  p.  1063,  ^46. 


THE  JAILS    IN    (^lil.MINAL  CASKS.  In!) 

^  258.  When  any  person  shrill  be  confined  in  any  county  prison  lor 
the  non-paymcni  of  any  fine,  not  exceeding  two  hiuidred  and  filly 
dollars,  imposed  lor  any  criminal  olience,  and  against  whom  no  other 
cause  of  detention  shall  exist,  on  satisfactory  proof  being  made  to  the 
county  court  of  the  county  in  which  such  prisoner  may  be  confined, 
that  he  is  unable,  and  has  been  ever  since  his  conviction,  to  pay  such 
fine,  the  court  may,  in  its  discretion,  order  his  discharge.' 

(3  12r)9.  If  any  person,  i)arty  or  witness,  disobey  an  order  of  the  judge 
or  referee  made  in  any  proceedings  supplementary  to  the  execution 
and  duly  served,  such  person,  party  or  witness  may  be  punished  by  the 
judge  as  for  a  contempt.  And  in  all  cases  of  commitment  under  chapter 
second  of  title  ninth  of  the  second  part  of  the  Code  of  procedure  con- 
cerning "proceedings  supplementary  to  the  execution,"  or  the  act  to 
abolish  imprisonment  for  debt,  the  person  comn)itted  may,  in  case  of 
inability  to  perform  the  act  required,  or  to  endure  the  imprisonment, 
be  discharged  from  imprisonment,  by  the  court  or  judge  committing 
him,  or  the  court  in  which  judgment  was  rendered,  on  such  terms  as 
may  be  just.* 

^  2G0.  If  any  prisoner  confined  in  a  county  jail,  or  in  a  state  prison, 
upon  a  conviction  for  a  criminal  oflence,  shall  escape  therefrom,  he  may 
be  pursued,  retaken  and  imprisoned  again,  notwithstanding  the  term 
for  which  he  was  imprisoned  may  have  expired  at  the  time  when  he 
shall  be  retaken;  and  shall  remain  so  imprisoned,  until  tried  for  such 
escape,  or  until  he  be  discharged,  on  a  failure  to  prosecute  therefor.^ 

g  201.  When  one  is  imprisoned  upon  any  criminal  charge,  who  may 
be  let  to  bail,  and  is  so  let  to  bail  by  any  court  or  officer  duly  author- 
ized to  let  such  person  to  bail  in  the  particular  case,  the  keeper  of  the 
jail  where  such  prisoner  is  so  detained,  shall  release  him  from  confine- 
ment on  being  served  with  the  order  of  the  court  or  officer,  or  officers, 
that  the  prisoner  has  given  the  proper  sureties,  and  that  he  be 
discharged.* 

^  262.  It  has  already  been  seen  that  the  keeper  of  every  county 
prison  is  required  to  present  to  every  court  of  oyer  and  terminer,  and 
to  every  court  of  sessions  to  be  held  in  his  county,  at  the  opening  of 
such  court,  a  calendar  of  the  prisoners  in  such  prison.'  In  making  out 
such  list,  the  officer  should  enter  the  names  of  all  prisoners,  then  in  jail 
awaiting  the  action  of  the  grand  jury,  or  trial,  and  also  of  all  witnesses 
who  may  be  detained  therein.  But  the  names  of  prisoners  then  in 
jail  under  sentence  need  not  be  stated. 

'  2  R.  S.  944,  ^28,  4th  ed.       3  2  R.  8.  686,  ^20.  *  Ante,  ^126. 

2  Code,  ^302.  Id.  808,  ^20,  4th  ed.  s  AnU>,  ^166. 


Ill)  <»]•  Till-:  i:m::cltion  ok  shntknck. 

en  \i'Ti:i:  w. 

<tF  TIIF.  KXKrUTlU.N  OF  SK.NTKNCt 

<5  -fiS,  When  one  has  liocn  sentencfd  to  iniprisonmnit  in  a  county 
jail  by  any  nviiristrute.  sittintj  as  a  court  of  special  sessions,  or  l)y  any 
judge  or  ollircr.  or  ollicers,  in  any  matter  or  proceeding  where 
he  or  they  are  authorized  to  sentence  one  to  a  county  prison,  such 
justice  or  other  olFicer  or  otllcers,  shall  issue  his  or  their  warrant,  to  be 
signed  by  then)  and  directed  to  the  siieriff,  constables  or  marshals  of 
the  county,  or  city  anti  county,  and  to  the  jailer  thereof,  in  which  the 
conviction  shall  be  had;  specifying  the  particulars  of  such  judgments. 
If  the  sentence  be  pronounced  by  the  court  of  special  sessions  of  the 
peace  of  the  city  and  county  of  New  York,  the  warrant  shall  be  under 
the  hand  and  seal  of  the  fust  judire,  mayor  or  recorder,  who  presided  ; 
or  of  the  persons  who  formed  such  court,  and  be  directed  to  the  sherilV 
of  said  city  and  county.'  And  on  the  delivery  of  any  such  prisoner  to 
the  keeper  of  the  county  prison,  at  such  prison,  together  with  such  war- 
rant, the  said  keeper  shall  take  such  prisoner  into  his  custody,  and 
execute  such  judgment  or  sentence. 

<3  204.  Whenever  a  sentence  of  imprisonment  in  a  county  jail  shall 
be  pronounced  bv  any  court  of  reconl  ui)on  any  person  convicted  of 
any  offence,  the  clerk  of  the  court  shall,  as  soon  as  may  be,  make  out 
and  deliver  to  the  shcrilV  of  the  county,  a  transcrijit  of  the  entry  of 
such  conviction,  in  the  minutes  of  the  court,  and  of  the  sentence  there- 
upon, didy  certified  by  such  clerk,  which  shall  be  a  sufllcient  authority 
to  such  sherilT  to  execute  such  sentence,  and  he  shall  execute  the  same 
accordingly.''  . 

^  205.  VV^hen  any  convict  shall  be  sentenced  to  imprisonment  in  the 
state  prison,  the  clerk  of  the  court  in  which  such  sentence  shall  be 
passed,  shall  forthwith  deliver  a  certified  copy  thereof  to  the  sherilVof 
the  countv,  who  shall  without  delay,  either  in  person  or  by  a  general 
and  usual  deputy,  cause  such  convict  to  be  transported  to  the  proper 
prison,  and  delivered  to  the  keeper  thereof.'  Such  sheriff  or  dej)uty 
while  conveying  a  convict  to  the  projier  prison,  shall  have  the  same 
power  and  the  like  authority  to  recpiire  the  a.ssistance  of  any  citi/en 
of  this  state,  in  securing  such  convict,  and  retaking  him,  if  he  shall 
e«ca[K;,  as  if  such  sherilF  were  in  the  county  for  which  he  w.is  elected; 
and  all  persons  who  shall  refuse  or  neglect  to  assist  such  sherilV  when 
required,  .shall  be  liable  to  the  same  penalties,  as  if  such  sherilf  were 
in  his  own  county.* 

1  2  R  8  224  V-  »  f>  R.  8.  789,  (>12.  *  -!  R  H.  739.<)1.1. 

I«l.  424.  <')2,  4lh  cd  IH   '.»22,  ()1 1,  itii  c<I.  U\    Wi,  <)ir>,  4th  cd. 

I2R.  H.  TTO.'^n.  AnU',  ^36. 

Id.  922,  <>I3,4lhcd. 


f)i<  Till-:  i:xKcirnoN  ov  SFi:NTi:xc:i-:.  1 1 1 

^  20(5.  When  any  convict  shall  be  sentenced  l»y  any  court  or  map- 
istrate  havin:^  criminal  jurisdiction,  to  the  house  of  rcfu;^e,  for  jiivenile 
dehnquents  in  the  city  of  New  York,  or  to  the  Western  House  of  Kefu^e 
for  juvenile  dehnquents,  in  the  city  of  llocheslcr,  such  convict  shall  be 
removed  by  the  sheriff  of  the  county,  pursuant  to  such  order,  to  such 
house  of  refuge.' 

^  207.  All  the  convicts  who  shall  be  sentenced  to  imprisonment  in 
the  same  prison,  or  to  the  same  house  of  refuge,  at  one  session  of  a 
criminal  court,  shall  be  transported  at  the  same  lime,  unless  said  court 
shall  expressly  direct  otherwise.^ 

i3  268.  On  the. delivery  of  such  convict  or  convicts  to  the  keeper  ol 
such  prison,  or  superintendent  of  such  house  of  refuge,  the  sheriff  or 
other  jierson  having  charge  of  the  same,  shall  make  and  render  to  the 
agent,  keeper  or  clerk  of  the  prison,  or  superintendent  of  such  house 
of  refuge,  an  account  of  the  numl)er  of  convicts  so  delivered,  and  the 
distance  from  the  prison  or  house  of  refuge,  to  the  place  of  conviction, 
which  account  shall  then  be  certified  by  him  on  oath  to  be  correct, 
which  oath  may  be  administered  by  the  kee[ter  of  the  prison  or  super- 
intendent of  the  house  of  refuge;  to  which  shall  be  added  the  certifi- 
cate of  either  the  agent,  clerk  or  keeper  of  such  prison,  or  superin- 
tendent of  such  house  of  refuge,  setting  forth  the  number  of  convicts 
so  delivered,  and  the  distance  from  such  prison  to  the  place  of  the  con- 
viction, which  account  certified  and  attested  as  aforesaid,  shall,  when 
a  convict  has  been  so  transported  to  the  state  |)rison,  be  audited  by 
the  comptroller,  and  paid  out  of  the  treasury.'  When  the  sheriff  shall 
produce  to  the  comptroller  a  statement  of  his  account  for  such  services 
and  expenses,  certified  by  the  clerk  or  agent  of  such  prison  to  be  correct, 
and  that  there  are  no  funds  applicable  to  the  payment  thereof,  it  shall 
be  the  duty  of  the  comptroller  to  draw  his  warrant  on  the  treasurer  in 
favor  of  such  sherifi'  for  the  amount  nf  ]\\<  account,  and  the  treasurer 
shall  pay  the  same.* 

,3i2()!>.  The  sheriff  shall  be  allowed  the  same  compensation  for 
transporting  convicts  to  the  house  of  refuge,  as  is  provided  by  law  for 
the  transportation  of  convicts  to  the  state  prison,  to  be  audited  and 
paid  as  a  part  of  the  contingent  expenses  of  the  county.^ 

;3  270.  Whenever  any  convict  shall  be  sentenced  to  the  punishment 

-f  death,  the  court  or  the  major  part  thereof,  of  whom  the  presiding 

judge  shall  always  be  one,  shall  make  out,  sign  and  deliver  to  the  sheriff 

of  the  county,  a  warrant,  stating  such  conviction   and  sentence,  and 

'  -iR.  S.  701.(>18.  2  2  R.  S.  9.38,  ^20,  4th  ed.  *  1  R.S.418,  ^f)2.5,2G,4th  ed. 

M.  884,  V)vV2()-22,  4th  od.  L.iws  1847,  ch.  497,  ^5.            Laws  1840  ch.  2-5  wU,  2. 

L.1WS  1850,  ch.  24,  ^l.  3  2  R.  S.  938,  ^19,  4th  ed.  s  2  R.  S.  701 ,  ^18. 

"       1846,  ch.  143.  ^IG.  Laws  1847,  ch.  497,  ^4.            Id.  S85,  ^22,  4th  cd. 


112  OF  Till-:  i:\i:cuTio\  of  sknti:nci:. 

appointini;  Iho  day  on  wliicli  such  sentence  shall  he  exccnte<l  ;  and  no 
judue,  court  or  ofliccr.  other  than  the  governor,  shall  have  any  authority 
to  reprieve  or  suspend  the  execution  of  any  convict  sentenced  to  the 
punishment  of  death  :  except  sherills.  in  the  rase  of  :ui  insane  convict, 
or  a  pregnant  female  and  in  the  manner  hereinafter  mentioned.' 

;S  '^71.  If  after  any  convict  .-^hall  have  been  sentenced  to  the  punish- 
ment of  death,  he  shall  hecome  insane,  the  shcrilT  of  the  county,  with  the 
concurrence  of  a  justice  of  the  supremo  court,  or  if  he  be  absent  from 
the  county,  with  the  concurrence  of  the  county  judge  of  the  county  in 
which  the  conviction  was  had,  may  summon  a  jury  of  twelve  electors  to 
iujjuire  into  such  insanity,  and  shall  give  immediate  notice  thereof  to 
the  district  attorney  of  the  county  ;  who  shall  attend  such  inquiry,  and 
may  produce  witnesses  before  the  jury  ;  for  which  purpose  he  shall 
have  the  same  power  to  issue  subi>a;nas  as  for  witnesses  to  attend  a 
grand  jurv,  and  disobedience  thereto  may  be  punished  by  the  court  of 
oyer  and  terminer,  which  shall  next  sit  in  such  county,  in  the  same 
manner  as  disobedience  to  any  process  issued  by  such  court." 

3  '272.  The  inquisition  of  the  jury  shall  be  signed  by  them  and 
the  sheriff.  If  it  be  found  by  such  inquisition  that  such  convict  is 
insane,  the  sheriff  shall  susjiend  execution  of  the  warrant  directing  the 
death  of  such  convict,  until  he  shall  receive  a  warrant  from  the 
governor  of  this  state,  or  from  the  justices  of  the  supreme  court 
directing  the  execution  of  such  convict.  The  slierilV  shall  immediately 
transmit  such  incjuisition  to  the  governor  ;  who  may,  as  soon  as  he  shall 
be  convinced  of  the  sanity  of  such  convict,  issue  a  warrant  appointing 
a  time  and  place  for  his  execution,  pursuant  to  his  sentence.' 

^  273.  If  a  female  convict  sentenced  to  the  punishment  of  death. 
be  pregnant,  the  sherifl*  shall  in  like  manner  summon  a  jury  of  six 
physicians,  and  shall  give  the  like  notice  thereof  to  the  district  attorney, 
who  shall  attend  and  have  j^ower  to  issue  subj)ocnas,  as  in  the  case  of 
an  insane  convict,  and  with  the  like  effect ;  and  an  inquisition  shall  in 
like  manner  be  made  and  signed  by  the  jurors  and  the  sheriff.  If  by 
sucli  iiujuisition  it  aj)pear  that  such  female  convict  is  quick  with  child, 
the  sheriff  shall  in  like  manner  susj)en(l  execution  of  her  sentence  ;  and 
shall  transmit  the  impiisition  to  the  governor.  And  whenever  the  gov- 
ernor shall  be  satisfied  that  such  fetnale  convict  is  no  longer  (juick  with 
child,  he  shall  issue  his  warrant,  appointing  a  day  for  her  execution 
pursuant  to  her  sentence ;  or  he  may  in  his  discretion,  commute  her 
punishment  to  perpetual  imj»risonm(nt  in  the  state  prison.' 

^5271.  The  juror.s  u])on  such   incpiests  should  be  summoned  by  the 

>  2  R.  8  C"  "  n    l"'  »  '^  H.  H.  OOR.  ^^18,  19.  ♦  li  R  H  WiK,  i)<)'20-'22. 

1.1   h ,  llh  0.1.         Id.  844,  ^^18, 19,  llh  «<1.  Id.  840,  ^^20-22,  4Ui  cd 

»2R.  S  17. 

Id.  Ml,  v»l^.  1".  •*i*^''*' 


OF  TIIE  i:Xi:CUTION  OF  SENTENCE.  I  W) 

sherifT  in  the  same  inaimor  as  in  other  cases,  whcic  the  selerlion  ol 
jurors  is  left  discretionary  with  him.  Tlioutjh  tlie  statute  prescribes 
no  other  <|iiahfication  for  the  jurors  in  the  case  of  an  insane  jicrson, 
than  that  they  should  be  electors  ;  and  in  the  case  of  ajjrcgnant  female 
that  they  should  be  i)hysicians,  yet  it  is  clearly  the  duty  of  the  sherifl' 
to  select  those  only  af^'ainst  whom  no  legal  exception  as  jurors  exist ; 
and  he  should  be  careful  not  to  select  any  who  entertain  ill  will  against 
the  prisoner  ;  or  who  have  conscientious  srruplcs  against  capital  pun- 
ishment ;  or  who  have  declared  an  opinion  upon  the  question.  But 
the  mere  expression  of  a  hypothetical  opinion,  that  if  the  facts  stated 
are  true,  the  prisoner  is, or  is  not  insane,  or  is,  or  is  not  encc'int(\  will  not 
necessarily  disfpialify  a  juror,  but  it  will  be  for  the  sherifl'  to  say,  whether 
such  expression  of  opinion  has  left  any  undue  bias  upon  the  mind  ol 
the  juror,  or  not,  and  he  should  allow  him  to  be  sworn,  or  set  him  aside 
accordingly.  The  shcriflpresides  upon  the  hearing  and  swears  the  jurors 
and  witnesses.  The  prisoner  must  be  present-,  and  may  be  attended  by 
counsel.  Either  party  may  object  to  a  juror  for  ctiusr,  and  it  is  the 
sherirt"s  duty  to  hear  the  ground  of  such  objection,  and  if  it  is  well  taken, 
to  set  the  juror  aside  and  summon  another  in  his  place.  The  truth  of 
the  objection  may  be  determined  upon  the  testimony  of  others,  or  the 
juror  may  himself  be  examined  touching  the  objection,  provided  it  do 
not  tend  to  his  dishonor  or  discredit.*  livery  one  is  presumed  to  be 
of  sound  mind  until  the  contrary  be  made  to  appear,  and  the  burthen 
of  proof  is  therefore  thrown  upon  the  prisoner.  And  so  with  the  female 
prisoner  claiming  to  be  enceinte.  She  is  not  to  be  presumed  so  until 
the  fact  be  made  to  appear.  The  prisoner  therefore  holds  the  aflirma- 
tive  of  the  issue,  and  will  be  entitled  to  the  closing  reply.  In  the 
latter  case  the  issue  is  obvious,  and  no  difliculty  can  arise  in  determining 
the  form  of  the  inquiry  to  the  witness,  or  the  verdict  to  be  rendered 
by  the  jury.  In  the  case  of  one  s\ipposed  to  be  insane,  the  inquirv 
should  be  whether  the  prisoner,  at  the  time,  has  sufficient  mind  rightly 
to  comprehend  his  own  condition,  or  whether  he  is  laboring  under 
such  a  diseased  state  of  mind  as  to  be  really  unconscious  of  his  situa- 
tion, and  the  nature  and  purpose  of  thf  punishment  about  to  be  inflicted 
upon  him. 

^20).  ^VIlenevel•  lor  aii_\  reasDii,  any  convict  sentenced  to  the 
l)unishment  of  death  shall  not  have  been  executed  pursuant  to  such 
sentence,  and  the  same  shall  stand  in  full  force,  the  suj»reme  court  on 
application  of  the  attorney  general,  or  of  the  district  attorney  of  the 
county  where  the  conviction  was  had.  shall  issue  a  writ  of  hahrn.: 
coiyus  to  bring  up  such  convict  before  such  court ;  or  if  he  be  at  large. 

Qn-xham's,  Pr.  308. 

16 


Ill  or  Tin:  i:xi:crTi{)\  of  sknthnci-:. 

a  wanaiil  for  his  a|)prelit'iisi()ii  may  l»e  issiiod  by  ll»e  court  or  any 
justice  lljereof.'  And  upon  such  ronviol  iK'ing  brought  bcforo  the 
court,  they  shall  proceed  to  in<piire  into  the  lads  and  circumstances, 
and  if  no  legal  reasons  exist  against  the  execution  of  such  sentence,  they 
shall  sign  a  warrant  to  the  sherilV  of  the  prof>er  county,  comnianding 
him  to  do  execution  of  such  sentence,  at  such  lime  a.s  shall  be  a|ipointed 
therein  ;  which  shall  be  obeyed  by  such  sherilV  accordingly.'  Hut  the 
court  before  which  an  appeal  from  the  conviction  is  had,  may  order  the 
sentence  to  be  carried  into  clfccl,  without  bringing  uj»  the  delendant 
on  habeas  corpus.' 

^  270,  The  punishment  of  death  shall  in  all  cases  be  inllirtcd  by 
hanging  the  convict  by  the  neck  until  he  be  dead  ;  and  such  punishment 
shall  be  inHicled  within  the  walls  of  the  prison  of  the  county,  in 
which  such  conviction  shall  have  taken  place,  or  within  a  yard  or 
enclosure  adjoining  said  prison,  except  in  the  case  mentioned  in  the 
next  section.  And  it  shall  be  the  duly  of  the  sherilf  or  under-sheritl' 
of  the  county,  to  be  j)resent  at  such  execution,  and  to  invite  the  presence 
by  at  least  three  day's  previous  notice,  of  the  judges,  district  attorney, 
clerk  and  surrogate  of  said  county,  together  with  two  physicians  and 
twelve  reputable  citizens,  to  be  selected  by  the  sheritf  or  under- 
sheritF;  and  the  sherill'  or  under-sberifl'  shall,  at  the  request  of  the 
criminal,  permit  such  minister  or  ministers  of  the  gospel,  not  exceeding 
two,  as  said  criminal  shall  name,  and  anyof  tiie  immediate  relatives  of 
said  criminal,  to  attend  and  be  present  at  such  execution  ;  and  also 
such  ollicers  of  the  prison,  deputies  and  constables,  as  said  sherilf  or 
under-sheriir  shall  deem  expedient  to  have  present ;  but  no  other 
persons  than  those  herein  mentioned  shall  be  j)ermitted  to  be  present 
at  such  execution,  nor  shall  any  person  under  age  be  allowed  to  witness 
the  same.* 

3  277.  If  in  ;m\  cmiuty  there  shall  not  be  a  jail,  or  the  jail  erected 
shall  become  unfit  or  unsafe  for  the  Conlinement  of  prisoners,  or  shall 
be  destroyed  by  fire  or  otherwise,  and  the  county  judge  of  such  county 
shall  have  according  to  law  designated  the  jail  of  some  c;onliguous 
county  for  the  confinement  of  the  prisoners  of  the  county,  it  shall  be 
the  duty  of  the  sherill'  of  the  county  in  which  such  convict  sentenced 
to  death  shall  be  confined,  to  attend  ujxm  the  <l.iy  appointed  for  the 
execution  of  the  senlenee  at  the  jail  of  said  oninty,  designated  by  said 
judge,  and  there  conduct  the  proceedings  and  execute  the  sentence  in 
all  respects  as  if  the  jail  was  located  in  the  county  where  such  convic- 
tion was  had.^ 

iSR.F'"        ■■  'l:'.v,  •-:  s'jn  H.  Rir,,  C/20, 4tlicd. 

I.I,  n  <I  «  ::  K  L.-JWH  iHlli,  ch.  118. 

> '2  U.  .'-.    ■■  .    -*  I'l      .  ■,    ^^.., -•;,  27,  Uhfd. 

Id.  Mb,  ^24,  4lh  cd.  L»ws  lb<i6,  ch.  268,  V^l,  2. 


01'  Till':  KXliClJTioN  OF  SKNTlCNCi:.  I  I. "3 

^5  !^7H.  Tlic  slierili'.  or  iindor-shcriir  ;ind  judircs  alleiidiii;,'  sucli 
execution,  shall  in-eparc  and  sign,  ollicially,  a  certificate  sirUinj^  lorth 
the  time  and  j)Iace  thereof,  and  that  such  criminal  was  then  and  there 
executed  in  conlormity  to  the  sentence  of  the  court,  and  the  provisions 
of  the  statute  ;  and  shall  procure  to  said  certificate  the  signatures  of 
the  other  i)ul)lic  officers  and  persons,  not  relatives  of  the  criminal,  who 
witnessed  such  execution  ;  rnul  the  sheritl'  or  unfler-sherilV  shall  cause 
such  certificate  to  he  filed  in  the  office  of  the  clerk  of  said  county,  and 
a  copy  thereof  to  be  published  in  the  state  paper,  and  in  one  news- 
japer,  if  any,  j)ublished  in  said  county.' 

§  279.  If  the  allowance  of  a  writ  of  error,  in  a  criminal  case,  direct 
a  stav  of  proceedings,  and  the  defendant  be  in  the  custody  of  the  sheriff, 
it  shall  be  the  duty  of  such  sherilV,  upon  being  served  with  the  clerk's 
certificate  of  the  filing  of  such  writ,  and  a  copy  of  the  allowance 
thereof,  to  keep  such  defendant  in  his  custody  without  executing  tiie 
sentence  which  jnay  have  been  passed  upon  such  indictment,  and  to 
detain  such  defendant  to  abide  such  judgment  as  may  be  rendered  upon 
such  writ  of  error,  unless  the  sentence  be  that  of  death.'''  But  such 
prisoner,  if  the  ofVence  be  punishable  in  the  state  pri.son  or  county  jail, 
may  be  brought  ujion  hdhcas  corpus,  when  allowed  by  a  justice  of  the 
supreme  court  and  thereupon  let  to  bail.^ 

CHAPTER  XVI. 

OF  TIIE  EXECUTION  OF  PROCESS  IN  CIVIL  CASES. 

^  280.  The  general  character  of  the  powers  and  duties  of  sheriffs 
in  civil  matters  and  proceedings,  have  already  been  pointed  out.  It 
has  been  seen  that  sheriffs  are  the  immediate  officers  of  every  court  of 
record,  of  civil  as  well  as  criminal  jurisdiction  in  the  state,  to  whom 
all  process  of  such  courts  must  be  directed  and  delivered  for  exe- 
cution, and  that  they  are  bound  to  execute  the  same.  Their  powers 
and  duties  in  the  execution  of  civil  process  differ  from  those  imposed 
upon  them  in  the  execution  of  process  in  criminal  matters,  while  the 
responsibilit}'  they  incur  in  the  execution  of  the  former  is  generally 
much  greater  than  in  the  latter.  If  they  wilfully,  negligently  or  erro- 
neously fail  to  perform  their  whole  duty  in  the  execution  of  civil  process, 
they  are  liable  to  the  jilaintiff  to  the  extent  of  the  damages  he  has 
sustained  thereby  ;  while  if  they  shall  in  any  respect  exceed  the  pow- 
ers conferred  upon  them  by  their  office  or  the  process  under  which 
they  act,  they  become  liable  to  the  party  aggrieved,  whether  he  be  the 
defendant  in  the  process  or  a  stranger  :  and  in  cither  case  they  are 
liable  to  punishment  by  indictment.     They  must  perform  their  whole 

»  2  U.  S.  846,  ^28,  4th  od.        a  '1  R.  S.  740,  ^18.  3  o  R.  S.  740,  ()19. 

Laws  1835,  ch.  268,  <)3.  Id.  923,  ^20,  4th  ed.  Id.  923,  <)21, 4th  ed. 


11(5  OF-  Tin:  I'-XKCUITION  (»F 

duty  prompily  and  faitlifiilly.  Inil  they  must  not  exceed  their  autliority 
ai^d  there  must  he  no  error  in  the  discharge  of  their  duties. 

^  iJSl.  When  process  is  delivered  to  any  sherifl"  for  service,  which 
•Ices  not  require  the  arrest  of  the  defendant,  or  the  seizure  ot  liis 
properly,  it  will  be  in)inatcrial  to  such  ollicer  whether  such  process  is 
regular  or  irregular,  and  he  should  serve  or  execute  the  same  accord- 
ing to  the  comma!i.I  thereof,  and  make  proper  return  thereto,  if  a 
return  is  necessary. 

^  'JS-J.  But  where  process  which  requires  or  authorizes  the  arrest  of 
any  partv.  or  the  seizure  of  his  goods,  is  directed  and  delivered  to  any 
sherilT  for  execution,  he  should,  before  proceeding  to  execute  the  same, 
ascertain  if  such  process  is  in  due  form,  and  is  regular  upon  its  face  ; 
for  if  such  process  is  void  upon  its  face,  that  is,  if  it  contains  any  thing 
showing  that  there  was  any  defect  of  jurisdiction  in  the  court  or  otFicer 
issuing  such  process,  of  the  subject  matter  or  of  the  person  of  the  party 
to  be  aflected,  the  sheriff  should  not  execute  it;  and  if  he  does,  or 
attempts  to  do  so,  he  will  be  a  trespasser.' 

5  283.  But  if  the  process  is  issued  by  a  court  or  officer  having 
jurisdiction  of  the  subject  matter,  and  there  is  nothing  upon  the  face 
of  such  process  to  show  that  such  court  or  officer  has  not  also  juris- 
«liction  of  the  person  of  the  party  to  be  airectcd  by  such  process,  the 
sheriff  to  whom  such  process  is  directed  and  delivered,  may  execute 
the  same  though  it  be  in  fact  absolutely  void,  and  it  will  be  a  conij)lete 
protection  to  him  for  all  acts  done  under  it  as  fully  as  if  the  same  was 
not  so  void.'  In  general  the  sheriff  ought  not  to  look  beyond  his  process 
to  ascertain  if  it  is  regular,  or  w  hether  the  court  or  officer  had  juris- 
diction of  the  deferidant,  whether  such  process  issue  from  a  court  or 
officer  of  special  or  limited  jurisdiction;  and  in  no  case  need  he  do  so.* 
Thus  where  an  execution  is  directed  and  delivered  to  him  for  execu- 
tion, he  is  not  bound  to  incjuire  whetiier  there  is  a  judgment  to  support 
It,  or  whether  the  execution  corresponds  exactly  with  the  judgment.* 
Nor  will  it  make  any  difference  that  the  sheriff  is  himself  aware  of 
the  fact  that  the  oflicer  or  court  had  no  jurisdiction.  He  must  be 
governed  and  is  [)rotected  by  the  process  and  he  cann<jt  be  allecleil  by 
any  thing  which  ho  has  learned  out  of  it,  as  going  to  impeach  it.*  And 
the  fact  that  the  ollicer  has  taken  an  indemnity  will  not  dejirive  him 
of  the  protection  of  his  process." 

3  iiHI.  But  though  the  sheriff  may  execute  process  void  for  want  of 
jurisdiction,  if  such  defect  is  not  apparent  upon  the  face  thereof,  yet  he 

I  Wat  53.   8«w.  Wf,  KKJ.  '  If.  W.tkI.  502.  »  AnU-,  <fiC,. 

s  f)  Wc-ml.  170.  231,  2I0  ♦  12  Wend.  97.  0  Hill,  MO. 

10     "       562  8  I»,irb.   17.  21  Wind.  486. 

1  H.ld.  381.  aScld.lttO.  Mllill,  IIH. 

1  Hill,  118. 


PROCESS  IN  CIVIL  CASES.  117 

is  not  hound  to  do  so,  and  he  may  refuse,  or  lie  may  slop  its  execution 
on  discovering  that  fact,  and  no  action  will  lie  against  him  for  so 
refusing.'  But  neither  a  constable  nor  his  surety  can  avail  themselves 
of  an  omission  hy  the  justice  to  comply  with  the  requirements  of  the 
statute  relative  to  the  mode  of  entering  judgments  by  confession  when 
sued  for  not  paying  over  money  collected  on  the  execution  f  nor  can  a 
sheriir  refuse  to  execute  an  execution  on  the  ground  that  it  was  issued 
for  too  much.^ 

^  285.  If  the  process  is  issued  by  a  court  or  oflicer  of  competent 
jurisdiction  and  is  not  void  for  any  reason,  it  will  be  the  duty  of  the 
sheritVto  execute  it,  according  to  the  command  thereof,  although  such 
process  may  have  defects  upon  its  face  which  render  it  voidable.  If  it 
is  so  irregular,  that  may  affect  the  party  issuing  it,  but  not  the  ministe- 
rial ofhcer  who  executes  it.  He  is  answerable  alone  in  such  case  for 
the  manner  in  which  he  executes  it.^  Thus  if  process  has  the  seal  of 
the  wrong  court  ujion  it ;  or  be  tested  upon  Sunday,  or  the  like,  these 
defects  will  render  it  voidable,  but  will  not  excuse  the  oflicer  from 
neglecting  to  execute  it. 

^  28G.  The  rule  that  an  oflicer  is  justified  by  his  process,  not  void 
upon  its  face,  is  one  of  protection  only.  And  if  it  is  in  fact  void,  he 
cannot  build  up  a  title  under  it  which  will  enable  him  to  maintain  an 
action  against  third  persons.' 

^  287.  Process  in  a  civil  cause  must  be  executed  by  the  sherifl'  in 
the  manner  and  within  the  time  required  or  prescribed  by  law ;  and  if 
he  neglects,  or  by  unreasonable  delay  the  debtor  absconds,  or  his 
goods  are  removed  or  seized  or  sold  by  some  other  oflicer,  upon  other 
process,  he  will  be  liable  to  the  party  aggrieved.^ 

^  288.  In  civil  matters,  the  powers  of  the  sheriff'  are,  with  few 
exceptions,  confined  to  the  limits  of  his  county  in  regard  to  compulsory 
acts.^  Tie  may  return  a  writ,  or  make  return  to  a  mandamus,  or  assign 
a  bond,  or  do  any  other  act  of  the  kind,  which  is  not  compulsory,  out 
of  his  county.*  But  he  cannot  make  an  arrest,  nor  seize  the  goods  of 
a  defendant  beyond  the  limits  of  his  county,  and  if  he  does  his  acts  will 
be  void,  and  he  will  be  a  trespasser.*  Yet  if  he  has  made  a  legal  arrest 
in  his  own  county,  he  may  pass  through  other  counties  with  the  pris- 
oner, if  in  the  direct  route  of  travel  from  the  place  of  arrest  to  the 
place  where  the  defendant  is  to  be  taken.*"  And  so  he  may  remove  a 
prisoner  beyond  the  limits  of  his  county  when  the  jail  of  an  adjoining 

»  16  Wond.  562.'  *  3  B;»rb.  17.  -  1  R.  S.  102,  %\5,  16. 

7  Hill,  -A-y.  12  Woiid.  97.  Id.  308,  %IS,  14,  4th  cd. 

3  Sold.  100.  3  Seld.  199.  s  2  Allen,  15. 

2  3  Wond.  282.  5  16  Wend.  562.  a  3  Watson,  89. 

3  12  Woud.  07.  1  Hill,  118.     2  Dcnio,  643.  ">  2  R.  S.  427,  <s(\e,  7. 

3  Seld.  199.  «  2  R.  S.  440,  ^77.  Id.  671,  ^^O,  7,  4th  cd. 

Id.  684,  \)07,  4th  ed.  9  Wend.  204. 

Sew.  129.     10  Wend.  367. 


118  OF  Till':  ICXIXTTION  OF  I'liOCFSS,  »S:f. 

county  has  hcon  drsiiiiKitccI  :i^  the  jail  of  tho  roiinty.'  He  may  also 
convey  his  prisoner  throiijjh  other  counties  «>n  habeas  corpus;  and  on 
fresh  pursuit  he  may  retake  a  prisoner  in  another  county,  or  even 
state,  who  has  escaped  either  from  an  arrest,  the  jail  or  from  the 
liberties  thereof.'  He  may  also  execute  an  attachment  against  a 
witness  for  disobeying  a  subprrna,  issued  by  any  court  of  record,  in 
any  coimty  in  the  state.'  And  where  any  county  has  been  or  shall  be 
divided,  anv  judi;ment  that  may  have  been  recovered  previous  to  such 
division,  or  after  such  division  upon  any  proceedings  instituted  previous 
thereto,  in  the  county  court  of  such  county,  or  before  any  justice  of  the 
peace  thereof,  may  be  collected  by  execution  to  be  issued  to  the  sherifl 
of  the  county  where  such  jud^jmenl  shall  have  been  rendered,  or  to  a 
constable  thereof,  as  the  case  may  require,  who  shall  execute  the  same, 
in  tfie  same  manner  as  if  such  division  had  not  been  made.^ 

^  tis9.  Whenever  it  shall  satisfactorily  appear  to  any  court,  or  any 
judge  of  the  supreme  court,  or  any  county  judge,  by  the  return  or 
affidavit  of  any  sherill',  deputy  sherilV,  or  constable  authorized  to  serve 
or  execute  any  process  or  pnjter  lor  the  commencement,  or  in  the 
prosecution  of  any  action  or  proceeding,  that  proper  and  diligent  effort 
has  been  made  to  serve  any  such  process  or  paper  on  any  defendant  in 
any  such  action,  residing  in  this  state,  and  that  such  defendant  cannot 
be  found,  or  if  found,  avoids  or  evades  such  service,  so  that  the  same 
cannot  be  made  personally,  by  such  proper  diligence  and  etlbrt,  such 
court  or  juilge,  may  by  order,  direct  the  service  of  any  summons,  sub- 
pcEua,  order,  notice  and  other  process  or  paper  to  be  made  by  leaving 
a  copy  thereof  at  the  residence  of  the  person  to  be  served,  with  some 
person  of  proj»er  age,  if  admittance  can  be  obtained,  and  such  proper 
person  found,  who  will  receive  the  same,  and  if  admittance  cannot  be 
obtained,  or  any  such  proper  person  found,  who  will  receive  the  same, 
by  afiixing  the  same  to  the  outer  or  other  door  of  said  residence,  and  by 
putting  another  cojiy  thereof,  properly  folded  or  enveloped,  and  directed 
to  the  person  to  be  served  at  his  place  of  residence,  into  the  post  office 
in  the  town  or  city  where  such  defendant  resides,  and  paying  tho  postage 
thereon.  On  filing  with  tho  dork  of  the  county  where  such  defendant 
resides,  or  the  county  in  which  the  conjjtiaint  in  any  such  action  is  by 
law  to  be  filed,  an  affidavit  showing  service  according  to  such  <»rder, 
such  summons.  sub])(ina,  order,  notice,  or  other  process  or  jtapcr  shall  be 
deemed  served,  and  the  sanjc  proceedings  may  be  taken  thereon  as  if 
the  same  bad  been  srrved  by  delivery  to  such  delcndrml  i)prsonally 
or  otherwise,  as  by  law  now  rcfpiircd  ;  but  the  court  may,  upon  any 
ap|>lication   l)y    tlum   dcenicd   reasonable,   at   any   litiic.   |iorniit  any 

'  Ante,  (>216,  »  Ante,  ^186.  <  2  U.  H.  55(1,  pry. 

»  Ante,  ^132.  Id.  7b7,  ^a5,  Uh  cd. 


OF  ARIIKSTS  IN  CIVIL  CASKS.  11<) 

(Icfeivlnnt  to  appear  and  (lefeiui,  or  have  surh  other  relief,  in  any  acli(in 
or  proceeding  founded  on  any  such  servicp  :i^  lln-  untuu'  nf  tlx-  <ms«' 
may  require.' 

CHAPTER  XVJI. 

01-'  ARUESTS  IN  CIVIL  CASES. 

^  200.  Fori7icrly  all  persons,  with  few  exceptions,  were  liable  to 
.J  rest  and  imprisonment  on  eivil  process,  as  of  course,  and  without  any 
order  of  a  court  or  olFicer  authorizing  such  arrest.  But  it  is  otherwise 
since  the  law  of  1832,  abolishing  imprisonment  for  debt,  and  now  no 
one  can  be  arrested,  except  in  the  cases  and  in  the  manner  pointed  out 
by  that  act ;  on  attachments  for  contempts,  which  indeed  are  in  the 
nature  of  criminal  process;  upon  writs  of  7ic  exeat, and  in  a  few  special 
cases,  and  in  the  cases  provided  by  the  Code  of  procedure.  In  all 
these  cases  however,  the  writ,  process  or  order  for  the  arrest  is  granted 
]jy  the  court,  in  which  the  action  is  brought,  or  by  a  judge  or  officer 
authorized  to  perform  the  duties  of  a  judge  at  chambers.  And  in  no 
case  can  one  having  a  claim  or  demand  against  another,  no  matter 
what  may  be  the  character  of  such  claim,  authorize  or  require  his 
arrest  in  the  commencement  of  the  action  or  proceeding  without  such 
order. 

^  291.  There  are,  however,  certain  persons  who  are  exempt  from 
arrest  in  civil  cases,  and  although  a  proper  writ  may  have  been  allowed, 
or  order  made  for  their  arrest  in  any  case,  the  sheriff*  may  render  him- 
self liable  to  jumishment  if  he  executes  such  process.  The  cases  in 
which  he  should  not  arrest,  and  the  cases  in  whicli  he  may  arrest  such 
])ersons  so  exempt,  will  lie  pointed  out  in  the  succeeding  sections. 

§  292.  If  any  writ  or  process  shall  be  sued  or  prosecuted  by  any 
jicrson,  whereby  the  person  of  any  amljassador  or  other  public  minister 
or  any  domestic,  or  domestic  servant  of  any  such  ambassador  or  public 
minister,  may  be  arrested  or  imprisoned,  or  his  or  their  chattels  be 
distrained,  seized  or  attached,  such  writ  or  process  shall  be  deemed 
and  adjudged  to  be  utterly  null  and  void  to  all  intents,  construction  and 
purposes  whatsoever.  And  in  case  any  person  shall  sue  forth  or 
prosecute  any  such  writ  or  process,  such  person,  and  all  attorneys  and 
solicitors  prosecuting  or  soliciting  such  case,  and  all  officers  executing 
any  such  writ  or  process,  being  thereof  convicted,  shall  be  deemed 
violators  of  the  laws  of  nations,  and  disturbers  of  the  public  repose,  and 
imprisoned  not  exceeding  three  years,  and  fined  at  the  discretion  of  the 
court.^    But  no  citizen  of  the  United  States,  who  shall  have  contracted 

'  Laws  1S53,  cb.  511,  <^\.         »  Laws  U.  S.,Act  30tli  April,  IT'JO/)  25,  2(V 


1*20  OF  AKlli:srs   IN  civil.  CASKS. 

(lel)ts  jirior  to  his  rnloriiii;  into  the  servire  oi  any  nmhassadDr  or 
other  public  minister,  which  debt  shall  be  still  due  and  unpaid,  shall 
have,'  take  or  receive  any  bepefit  of  the  act,  nor  shall  any  person  be 
proceeded  airainst  by  virtue  of  said  a«'t,  for  having  arrested  or  sued  any 
other  dtunestic  servant  of  any  ambassador  or  other  public  minister, 
unless  the  name  of  such  servant  be  first  registered  in  the  oilicc  of  the 
'secretary  of  state,  and  by  such  secretary  transmitted  to  the  marshal 
of  the  district  in  which  conj^Mcss  shall  reside,  who  shall,  upon  receipt 
thereof,  atlix  the  same  in  some  public  place  in  his  ollice,  to  which  all 
|>ersons  may  resort  to  take  copies  without  fee  or  reward.'  The  privi- 
lege from  arrest  extends  a.s  well  to  ambassadors  and  public  ministers 
accredited  to  another  county,  while  j)assing  through  this  slate  in  the 
discharge  of  their  mission,  as  to  those  accredited  to  this  govornment.* 

^  293.  The  state  courts  have  no  jurisdiction  in  the  case  of  a 
consul  of  a  foreign  government  residing  in  the  Uiiitetl  States.  And 
the  fact  that  such  consul  is  impleaded  with  a  citi/cn  upon  a  joint  con- 
tract, will  not  give  jurisdiction  to  a  state  court.  His  exemption  is  not 
a  personal  jirivilege,  but  the  privilege  of  his  government,  and  it  cannot 
be  waived  by  his  appearing  in  an  action  in  the  state  courts  and  pleading 
to  the  merits.'' 

;5  291.  All  non-commissioned  ofiicers,  artificers,  privates,  and  musi- 
cians, seamen  and  marines,  who  are  and  who  shall  be  enlisted,  and 
the  non-commissioned  officers,  artificers,  privates  and  musicians  of  the 
militia,  or  any  other  officer  who,  at  any  time  may  be  in  the  actual 
service  of  the  United  States,  shall  be  exempt  during  their  term  of 
service,  from  all  personal  arrests  for  any  debtor  contract.  And  when- 
ever any  non-commissioned  ofiicer,  artificer,  private  or  musician,  shall 
be  arrested,  whether  by  mesne  process,  or  in  execution,  contrary  to  the 
intent  hereof,  it  shall  be  the  duty  of  the  judge  of  the  district  court  of 
the  United  States,  and  any  court  or  judge  of  a  state,  who  by  the  laws 
of  such  stale  are  authorized  to  issue  writs  of  habeas  corpus,  respect- 
ively, on  application  by  an  ollicer,  to  grant  a  w  ril  of  habeas  corpus 
returnable  before  himself;  and  upon  due  hearing  and  examination,  in 
a  summary  manner,  to  discharge  the  non-commissioneil  ollicer,  artificer, 
private,  or  musician  from  such  arrest,  taking  common  bail,  if  re<piired, 
in  III  mesne  jiro(!ess,  and  commit  hin^  to  the  apj)lic.anl  or 

go;  :<-er  ol  the  same  corps.     >\(»  noii-coiiiinissioiictl  «»(licer, 

musician,  or  private,  shall  be  arrested,  or  subject  to  arrest,  or  to  be 
taken  '  for  any  debt  under  the  sum  of  twenty  dojl.irs,  con- 

Iracle  tment.nor  for  any  debt  conlracted  alter  enlistment.* 

I  r  n  i   \|.ril  80lh,  »3  8oId.  C70.  *  I-aw«  I'.  8  Aol  J.m.  11th. 

6Darb.  115.  IT'.'.s.t/,. 

1  i  iM,  A.  t  M.'ir,  ir.iii.nim,  ^9. 

"     3Ulb  l«(nj,  (>23. 


OF  ARKKSTS  IN  CIVIL  CASRS.  I'^l 

The  ofTicers,  non-commissioned  olllcors,  musicinns  and  privates,  of  the 
marine  corps,  shall  durinfr  the  period  of  their  enlistment,  he  exempt 
from  all  personal  arrest  for  deht  or  contract.' 

(5  21);').  'J'he  senators  and  representatives  in  conpjress,  shall  in  all 
cases,  e\«-cpt  treason,  folony,  and  hreach  of  the  peace,  he  j^rivileged 
from  arrest  during  thevr  attendance  at  the  session  of  their  respective 
houses,  and  in  i;oing  to  or  returning  fnjm  the  same.- 

§  '29(5.  Every  meinher  of  the  legislature  shall  be  privileged   from 
arrest  on   civil   ])rocess,  during  his  attendance  at  the  session  oi  the 
house  to  which  he  shall   belong,  except  on  i)rocess  issued  in  any  suit 
brought  against  him  for  any  forfeiture,  misdemeanor,  or  breach  ol 
trust  in  any  ollice  or  place  of  public  trust  helil  by  him.     Each  member 
shall  enjoy  the  like  privilege  for  the  space  of  fourteen  days  previous  to 
any  such  session,  and  also  while  going  to  or  returning  from  such  session, 
provided  the  time  of  .such  going  or  returning  do  not  exceed  fourteen 
days.      Such  member  shall  also  enjoy  the  like  privilege  after  any 
adjournment  of  the  legislature,  until   its    next  meeting,  when   such 
adjournment  shall  not  exceed  fourteen  days  ;  and  also  while  absent  with 
leave  of  the  house  to  which  he  shall  belong.^     But  such  member  may 
be  arrested  after  he  has  returned  to  his  home,  upon  a  final  adjournment, 
though  the  fourteen  days  have  not  expired.^  No  officer  of  either  house, 
whilst  in  actual  attendance  upon  the  house,  shall  be  liable  to  arrest  upon 
civil  process.     The  arresting  a  member  or  officer  of  either  house  ol 
the  legislature  is  declared  a  breach  of  the  privilege  of  such  house,  and 
may  be  punished  by  such  house  as  for  a  contempt ;  but  when  the  pun- 
ishment therefor  is  by  imprisonment  it  shall  not  extend   beyond  the 
same  session  of  the  legislature." 

v5  297.  No  female  shall  be  arrested  except  for  wilful  injury  to  person 
or  character,  or  property  ;®  and  the  concealment  and  disposal  of  a 
piano  is  not  an  injury  to  property,  within  the  meaning  of  the  Code.' 
If  the  female  be  a  married  woman,  neither  she  nor  her  husband  can  be 
arrested  for  an  assault  and  battery  by  her.^ 

(S  298.  All  officers  of  the  several  courts  of  record,  including  sherills. 
shall  be  liable  to  arrest,  on  any  process  against  the  body,  and  may  be 
held  to  bail  in  the  same  manner  as  other  persons,  except  during  the 
actual  sitting  of  the  court  of  which  they  are  officers :  and  when  sued 
with  any  other  person,  such  officer  shall  be  liable  to  arrest,  and  maybe 
held  to  bail  as  other  persons,  during  the  silting  of  the  court  of  which 
they  are  officers  ;  but  no  attorney,  or  counsellor,  or  solicitor,  shall  be 
exempt  from  arrest  during  the  sitting  of  the  court  of  which  he  is  an 

I  Laws  U.  S.  act.  June  30th,    *  4  Wend.  204.  s  Code.  ^179. 

1834,  ^5.  5  1  u.  S.  154,  <)^\0,  13,  14.      ?  2  Sandf.  729. 

sConst.  U.S.art.l,v>6,Sub.  1.      Id.370,(/>10,13,14,4thcd.  s  8  How.  Pr.  R.  134. 
3  1  R.  S.  154,  <)<)(j-Vi. 

Id.  3G9,  §^G-9,  4th  ed. 

17 


\•>^  OF   AKIlllSrs  IN  CIVIL  CASKS. 

oflicer.  unless  hi'  shall  ho  omi)I«>yotl  in  some  cause  |)(Muliii^.  and  then 
to  be  hearii  in  such  court.'  And  such  attorney  and  counsellor  arc  not 
privilejied  from  arrest,  althoutrh  such  arrest  prevents  their  contemplated 
attendance  upon  court,  if  the  arrest  be  made  whilst  they  remain  at 
home'  And  they  are  not  exempt  from  arrest  when  they  are  before  a 
master,  examiner,  or  jud^je,  out  of  court.'  Nf>r  where  the  proceedings 
against  them  are  in  the  name  of  the  peoj)le  ;*  nor  when  one  has  ceased 
to  practice  for  a  year,  and  has  entered  into  other  employment." 

^  *J1)'J.  All  parlies  to  a  suit  are  exempt  from  arrest  during  their 
attendance  at  court,  or  before  arbitrators,  or  referees,  or  other  judicial 
proceedipus.and  in  goin^toand  returning  therefrom.'  But  one  convicted 
of  an  assault  and  battery,  at  a  court  of  s|»i'cial  sessions,  is  not  j)rotected 
in  returning  therefrom,  from  arrest  in  a  civil  action  for  the  same 
offence.^ 

^  300.  Every  person  duly  and  in  good  faith  subp<cnaed  as  a  witness 
to  attend  any  court,  ofticer,  commissioner,  or  referee,  or  summoned  to 
attend  any  judge,  ollicer,  or  commissioner,  in  any  case  where  the 
attendance  of  such  witness  may  by  law  be  enforced  by  attachment  or 
by  commitment,  shall  be  exonerated  from  arrest  in  any  civil  suit,  while 
goinir  to  the  place  where  he  shall  be  required  by  such  subpoena  to  attend, 
while  remaining  at  such  place,  and  while  returning  therefrom.*  IJut  a 
person  so  attending  a  court  or  officer,  is  not  entitled  to  the  privilege 
of  a  witness  from  arrest,  unless  he  attend  as  a  witness  ;  and  it  is  not 
surticient  that  he  is  afterwards  examined  in  the  cause."  The  <'0urt  or 
officer  before  whom  any  })erson  shall  have  been  in  good  faith,  subi)a?naed 
to  attend  as  a  witness,  shall  discharge  such  witness  from  arrest  made 
in  violation  of  his  jirivilege  ;  and  if  such  court  shall  have  adjourned 
before  such  arrest  was  made,  and  before  api)lication  for  such  discharge 
be  made,  any  judge  of  such  court,  or  the  county  judge  shall  have  the 
same  power  to  discharge  such  witness.  ILvery  arrest  of  a  witness 
made  <-ontrary  to  the  foregoing  |>rovisions,  shall  be  absolutely  void,  and 
shall  be  deemed  a  contem|>t  ol  the  court  issuing  the  subp<rna  ;  and 
every  j>erson  making  such  arrest,  shall  be  responsible  to  the  witness 
arrested  for  three  times  the  amoimt  of  the  d.unaL'cs  which  shall  be 
found  by  the  jury,  and  shall  also  be  liable  to  an  a<tion  at  the  suit  of  the 
I'  '         '    icnaed   su<*h  witness,  for  the  loss,  hindrance,  and   dam- 

a^  by  him  in  consequence   of  such  arrest.     IJut  no  sherifT 

or  other  otlicer,  or  person  sh.ill  be  so  liable,  unless  the  person  claiming 

>  2  H.  H.  !K»0,  <^,.  i  '2  Jolin.  Ca.  102.                     «  2  U.  H  '102,  (/A. 

M  47<;,  <,~4,  4lb  cd.  •  2  W.-ml.  2^)7.                               M   017,  \\c,|,  Itli  cd 

»  4  W.i.l.  2»M  1  K.lw.iriU'  Ch.  118.             »  I  ilill,  O'J 

»4  Ilill. &i»  ''  1  D«!nio,  000. 
«  4  Cow.  143. 


OF  ARRESTS  IN  U1\1L  CASKS.  123 

nn  exemption  from  arrest,  shall,  if  rofinircd  liy  swli  shcrifl'  or  ofTicer, 
make  an  aflldavit,  stating  : 

1.  That  he  has  been  leu;ally  suh[)a;nae(l  as  a  witness  to  attend  before 
some  roiirt  or  oflirer,  specifyini,'  su<!h  ("ourt  or  oflicx-r,  the  |ihi(;e  of 
attendant-e.  and  the  cause'  in  which  he.  sh.dl  have  been  subjicjcnaed  : 
and, 

2.  That  he  has  not  been  suit|»a;naed  by  liis  own  procurement,  with 
ihe  intent  of  avoidinj^  the  service  of  any  process: 

Which  affidavit  may  be  taken  by  such  officer,  and  when  so  taken 
shall  exonerate  such  officer  from  all  liability  for  not  makincrsuch  arrest.' 
When  a  witness  is  arrested,  and  neglects  to  claim  his  privilege,  and 
the  shcritr  is  not  aware  that  he  is  so  privileged,  he  waives  such  |jrivi- 
lege  by  giving  bail.* 

,§  301.  Persons  belonging  to  the  militia  of  the  state  shall  be  exempt 
from  arrest  on  civil  process,  on  the  day  of  parade,  from  the  rising  of 
the  sun  to  its  setting.^ 

,^  30'^.  Whenever  any  election  shall  be  held  in  any  city  or  town  of 
this  state,  under  the  general  election  law,  or  any  town  meeting  shall  be 
held  in  any  town,  no  declaration  by  which  a  suit  shall  be  commenced 
or  any  civil  process,  or  proceeding  in  the  nature  of  civil  jjrocess,  shall  be 
served  on  any  elector  entitled  to  vote  in  such  city  or  town,  on  the  day 
on  which  such  election  or  town  meeting  shall  be  held.^ 

<5  303.  Any  sheriff  or  other  officer,  who  shall  have  arrested  any 
f)risoner  in  any  county,  may  pass  over,  across,  and  through  such  parts 
of  any  other  county  or  counties,  as  shall  be  in  the  ordinary  route  of 
travel  from  the  place  where  such  prisoner  shall  have  been  arrested 
to  the  place  ^^here  he  is  to  be  conveyed  and  delivered,  according  to  the 
command  of  the  process  by  which  such  arrest  shall  have  been  made. 
Su<-h  (-onveyance  shall  not,  in  any  case,  be  deemed  an  escape  ;  nor 
shall  the  prisoner  so  conveyed,  or  the  officers  having  him  in  their 
custody,  be  liable  to  arrest  on  any  civil  process,  while  passino-  throuf'h 
such  other  county  or  counties.'  And  all  persons  concerned  in  the 
second  arrest  of  a  prisoner  in  the  case  mentioned,  with  knowledf^e  of 
the  previous  arrest  are  answerable  as  for  an  unlawful  arrest.* 

^  304.  Where  a  jirisoner  has  been  duly  arrested,  and  is  in  custody 
of  the  sheriff,  or  has  been  committed  to  jail,  in  a  civil  or  criminal  case 
or  is  upon  the  limits,  he  is  in  the  custody  of  the  law,  and  he  cannot 
be  arrested  or  taken  out  of  the  custody  of  the  officer  holding  him  upon 
any  subsequent  process  or  execution  in  a  civil  or  criminal  matter 
unless  upon  habeas  corpus,  duly  issued ;  and  if  the  officer  having  him 

'  2  R.  S.  402,  f)^52-55.  <  1  R.  S.  337,  ^2,  4th  ed.  s  2  R.  S  427  m  7 

Id.  647,  ^()65-68, 4th  cd.          M.  342,  ^10.  Id.  671,  <M  I'uh  ed. 

a  15  IJarb.  26.                              Id.  64ft,  ^21,  4th  ed.  9  Wend  204 

3  1  R.  S.  303,  ^27.                       20  Weud.  681.  e  9  Weud  204 
Id.  610,  ^23,  4th  ed. 


i^l 


OK  AURFSTS  I\  CIVIL  CASI-.S. 


in  I'u.sUnly  umlor  siu'li  Jirsl  process,  ;illt»\v  liitii  to  l>t*  so  taken  out  <>l  Ins 
rustody.  it  will  he  an  t*sra|H\'  But  where  the  piisfMier  is  iiiidcr  arrest, 
upon  a  criminal  charge,  he  njay  he  suhjed  lo  arrest  in  a  civil  action,  if 
leave  of  the  court  or  of  a  judtxe  in  vacation  is  first  granted.'^ 

i5  IlOri.  No  acting  commissioner,  superintendent  of  repairs,  collector 
or  lock  keeper,  on  any  canal,  shall  he  held  to  hail,  or  taken  hy  warrant, 
in  any  civil  suit,  for  any  act  done,  or  omitted  lo  he  done  hy  him  in  the 
exercise  of  his  ollicial  duties.' 

^  :}()(>.  It  will  he  seen  that  the  sherilVmust  not  atlemjit  to  arrest  an 
amhassador  or  other  puhlic  minister,  or  his  secretary  or  servant,  except 
in  the  cases  mentioned,  where  such  servant  may  he  arrested  ;  nor 
should  he  arrest  any  memher  of  congress  in  this  state,  or  when  i)assing 
through  it,  or  any  memher  or  oOicer  of  either  liouse  of  the  legislature, 
during  the  time  that  they  are  so  exempt.  Nor  should  lie  arrest  any 
t'emale,  or  canal  ollicer,  if  it  should  appear  froin  the  process  that  they 
are  exempt  from  arrest  in  the  jiarticular  case.  In  the  case  of  other 
exemptions  mentioned,  except  in  that  of  attorneys  and  counsellors,  the 
sheritV  may,  or  may  not  arrest  the  party  as  he  may  think  proper.  But 
if  he  refuses  to  arrest  one  on  proper  j)rocess,  in  any  such  case,  it  will 
be  at  the  peril  of  showing  in  any  action  brought  against  him  for  so 
refusing  to  make  sui-h  arrest,  or  for  an  escape,  that  the  exemption 
claimed  by  such  person  was  well  foundt^d.  If  he  does  arrest  any  person 
so  exempt,  no  action  will  lie  against  him,  exce|>t  when  he  refuses  to 
release  a  witness  who  has  made,  or  oilers  tt^make  the  proper  aflidavit, 
to  entitle  him  to  a  discharge.  It  would  seem  therefore,  to  he  the  safest 
course  for  the  sherifl'to  pursue,  to  arrest  in  all  casg^  where  he  may  do 
so  without  incurring  liability,  and  leave  the  i)arty  to  obtain  his  discharge 
by  application  to  the  court.  And  in  the  case  of  attorneys  and  coun- 
sellors, he  must  do  so,  for  though  they  may  be  exemjit  from  arrest  at 
the  time,  yet  if  the  sheritl' refuses  to  take  them,  or  releases  them  after 
arrest,  unless  by  order  of  the  court,  he  will  be  liable  for  an  escape.* 

5  .'}()7.  After  one  has  been  arrested  and  tlischarged  by  reason  of 
being  temporarily  exemi)t,  as  where  he  is  attending  the  trial  of  a  cause 
in  whi«h  he  is  a  party  or  a  witness,  he  may  be  arrested  again  by  the 
officer,  on  the  same  process  after  such  temporary  exeniption  is  removed.'' 

3  JiOH.  The  defendant  nmst  be  arrested  if  he  can  be  found  in  the 
county  to  which  the  process  is  issued,  within  reasonable  time  after  the 
writ  or  order  is  delivered  to  the  sherill,*  and  on  or  before  the  return 
day."     But  the  oflicer  may  return   ])rocess  ujinn  the  morning  f»f  the 


>  'J  How  Pr  R.  'j3. 
s  10  Wcnrl   OaH. 
3  1  R   H  TSi,  ^4.-5. 
Id.  480,  ^Gl,4lhcd. 


•  1 1  JoJiii,  4.13. 

IH  Jeilm.W. 

1  W.     ■.  :',2. 


5  1    K.iw.irdH  Cli.  UK. 

1  W.n.l.  :L'.     f)  Wend.  90. 

Ml'irk.  i:i7.     lKJobii.52. 
•  H4-w<-ll,l'J'». 
1  y  John.  117. 


OF  AllRRSTS  IN  CIVIL  CASICS.  125 

return  day  thercol",  although  he  might  subsequently  have  arrested  the 
ilefeiidanf.' 

,§  309.  The  sheriH"  or  his  general  deputy,  acting  within  his  (-ounty, 
is  not  bound  to  show  his  warrant  for  the  arrest.  And  when  a  demand 
to  see  it  is  made,  his  refusal  to  show  it  will  not  make  him  a  trespasser, 
if  he  in  fact  has  such  i)rocess.''  But  it  is  well  for  the  ofiicer  to  show 
his  authority  in  all  cases,  as  it  may  j)revent  resistance,  and  a  special 
deputy  nuist  do  so.^  And  if  required  by  the  defendant  tlie  officer  must 
deliver  to  him,  without  fee,  a  coj>y'of  the  process.^ 

^  310.  The  arrest  should  be  made  by  actual  seizure  of  the  defendant's 
body.  But  any  touching,  however  slight,  is  sufficient;  as  if  the  officer 
lay»iiis  hand  on  the  defendant  and  says,  "  I  arrest  you,"  without  saying 
at  whose  suit,  or  by  what  process,  unless  required  by  the  defendant,  it 
is  a  good  arrest.^  And  it  will  be  a  good  arrest,  if,  while  the  defendant's 
hand  is  out  of  the  window,  the  officer  lay  hold  of  it."  But  no  manua 
touching  of  the  body,  or  actual  force  is  necessary  to  constitute  an 
arrest/  It  is  sufficient  if  the  party  be  within  the  power  of  the  officer 
and  submit  to  the  arrest."  And  if  the  officer  enters  the  room  and  locks 
the  door,  and  tells  the  defendant  that  he  arrests  him,  it  is  a  good  arrest, 
fur  the  defendant  is  in  his  power.*  Nor  is  it  necessary  that  the  arrest 
should  be  made  by  the  officer  to  whom  the  process  is  directed ;  nor 
need  he  be  in  sight,  when  the-  arrest  is  made.  It  may  be  done  by 
another,  sent  forward  at  some  distance,  and  out  of  sight.'"  Nor  is  any 
exact  distance  prescribed.  It  is  sufficient  if  the  officer  be  near  and 
acting  in  the  arrest.''  And  where  the  arrest  was  made  by  the  officer's 
son,  the  officer  himself  being  out  of  sight,  and  two  hundred  yards 
distant,  such  arrest  was  held  good,  in  an  action  against  the  sheriff  for 
an  escaj)e."'  But  words  only  do  not  make  an  arrest,  as  where  the 
ofiicer  goes  to  the  party  and  says,  "  I  arrest  you,"  unless  the  party 
submits.'^  And  where,  in  such  case  the  officer  merely  utters  the  words, 
and  before  he  touches  the  prisoner  he  runs  away ;  or  the  ofiicer  is 
beaten  off  it  is  no  arrest."  And  so  where  the  officer  read  his  warrant 
to  the  defendant,  and  then  having  taken  his  fee,  proceeded  to  the 
defendant's  attorney  to  let  him  know  it  in  order  to  put  in  bail,  and 
afterwards  returned  that  he  had  arrested  the  part}',  it  was  held  to  be 
no  arrest.''     And  likewise  where  the  officer  sent  his  servant  to  the 

'  10  Wend.  3G7.  ^  Allon,  9G.  12  Impcy  75 

»  10  WeiKl.  514.  1  Woiul.  210.  Cowper,  65. 

■>  Sewoll,  105.  8  Allen,  96.  13  Watson,  90. 

10  Wond.  514.  1  Haokus,  116.  >4  1  Backus  116 

<  2  R.  S.  440,  ()76.  »  WaUon,  00.  is  Alien  96  ' 

Id.  G84,  V)96,  4tli  cd.  i"  1  Backus,  116. 
5  1  Backus,  116.  Cowpt^r,  63. 

»  1  Salk.  79.     Impey,  72.        "WaLson.OO. 

Watson,  90.  Cowper,  63. 

SeweU,  130.  Sewcll,  130. 


\'>{^  mK  ARiii:STS  IN  CIVIL  CAS ICS. 

party  to  mionn  liiin  that  tluMv  was  :i  writ  otU  n<iainst  him,  and  that  lio 
must  roine  aiul  u'ive  l>ail.  it  was  hdil  no  arrest,  lor  the  mcssi-n-jer  liad 
no  warrant.' 

<5  811.  The  arrest  may  bo  made  hy  the  sherilF  in  any  jiart  <>f  his 
county,  and  in  any  place,  U|>on  the  i)remises  or  in  any  l)uildin2;  of  the 
defendant,  or  of  any  other  i>crson,  even  in  a  dwelling  house,  if  the 
outer  door  thereof  is  open.'  And  where  the  front  door  is  usually  kept 
fastened,  the  olliror  may  enter  a  ba<k  door  pea<cfidly  if  he  ran.'  If 
the  defendant  be  in  any  building  other  than  the  dwelling  h(»use  of  sufh 
defendant,  and  admittance  is  refused,  the  oHiccr  mny  break  o])en  all 
doors,  windows,  closets,  boxes,  chests,  and  drawers,  to  come  at  him. 
An<i  so  when  the  olTicer  is  once  within  the  walls  of  even  a  dwelling 
house,  by  having  jjeacefully  and  lawfully  entered  at  the  outer  door,  he 
may  break  open  every  inner  door,  closet,  box,  drawer,  or  trunk  to 
execute  his  process.*  But  when  it  is  necessary  to  break  an  outer  or 
inner  door,  box,  chest,  drawer,  or  trunk,  he  should  first  demand  that 
the  same  be  ojieneil  before  proceeding  forcibly  to  oi)en  them.  This 
however,  would  seem  to  be  necessary  only  in  a  case  where  the  defend- 
ant is  not  in  the  house,  or  the  officer  has  no  reasonable  grounds  for 
believiiiii  him  to  be  secreted  therein.* 

5  31;!.  Although  as  has  been  seen,  the  sheriff  may  enter  the  defend- 
ant's dwellirig,  i>eacefully  if  he  can,  he  has  no  right  to  do  so  in  the 
absence  of  himself  and  family,  and  against  his  known  wisht^s  ;  as  where 
the  door  is  fastened  or  latched,  to  arrest  the  occupant  or  any  of  his 
family,  domestic  servants,  permanent  boarders,  or  persons  who  make 
the  house  their  home  ;  for  the  mere  raising  a  latch,  or  lifting  a  window 
to  obtain  entrance  to  serve  civil  process  in  such  a  case,  is  a  l)roaking 
the  house  which  cannot  be  justified.*  And  if  on  rajiping  at  the  door, 
it  is  oi»ened  by  a  member  of  the  family  to  sec  who  is  th(>rc,  and  the 
officer  forcibly  rush  in,  and  make  an  arrest,  the  entering  and  arrest  are 
unlawful.^  For  the  house  of  every  one  is  to  him  as  his  castle  and 
fortress,  as  well  for  his  defence  against  injury  ami  violence,  as  for  his 
repose.'  "  The  outer  door  or  window  of  a  man's  house,"  says  Lord 
Mansfield,  *•  shall  not  be  broken  open  by  |)rocess.  This  has  long  been 
well  understood.  The  ground  of  it  is  this,  that  otherwise  the  conse- 
quence of  it  would  be  fatal,  for  it  would  leave  the  family  within  naked 
exiH.MMJ  to  thieves  and  robbers.*  This  rule  of  privilege  is  no  j.rivi- 
lege  of  a  debtor,  properly  speaking,  who  ab.sconds  from  justice,  in 
avoidance  of  legal  process  ;  but  is  annexed  to  the  hou.s(«  and  outer  door, 

1  Allrn   W.  *  17  John.  127.  '  IiniM-y,74. 

,  w  •»"'•'>  W   Pro.  EUz.  WO.  <  C<.w|».T,7.  "  't  InM   (VI 

?  I        '  »  SCi.ki',  *.t2.  •'!  <"<'k<'.  W. 

?,  I  -iSfi.  3  Il"»  vV  I'ul.  231.  •('..wiMT,  fi. 

It,  j,,,„  •Alli-n.  110.  All.ii,  109. 

4  Hill,  437. 


OF  AlUli:S'l\S  IN  CIVIL  CASKS.  !'.>? 

fur  tho  itrotection  of  ;i  man  and  his  family."'  This  privileu'c  dofs  not 
extend  to  anv  bam  store,  waichuiisc  or  other  Iniiidiii'j-.  dcta<hcd  iVotii 
such  dwelhn;^.' 

<5  3l'.i.  A  dvvellin'4  hou.sf  is  any  huildini;  used  for  the  hahit.ition  and 
dwelling  of  man,  in  wliieh  a  burglary  may  be  committed.^  And  it 
com})rchends  not  only  the  very  house,  but  all  outhouses  which  are 
parcel  thereof,  if  immediately  connected  therewith.*  IJut  a  b<K)th  or 
tent  erected  in  a  market  or  fair  is  not  a  dwelling  house,  though  the 
owner  lodge  therein.''  Sometimes  even  a  portion  of  a  building  is  held 
to  be  a  (lvvellin<T  house,  as  sets  of  chambers  in  an  inn,  or  court,  or 
college,  when  held  under  distinct  titles,  and  unconnected  with  each  other 
in  their  nature  and  manner  of  occcpation,  as  if  they  were  under  sepa- 
rate roofs.®  And  so  where  a  whole  house  is  let  to  lodgers,  and  the  owner 
does  not  inhabit  any  part  of  it,  though  there  is  only  one  door  common 
to  all  the  inmates,  yet  every  separate  apartment  is  the  distinct  mansion 
house  of  its  respective  possessor.^  And  the  outer  door  of  each  of 
such  several  apartments,  whether  leading  into  the  air  or  into  a  covered 
wav,  is  the  outer  door  of  such  several  dwellings,"  But  if  the  landlord 
occupies  but  a  single  apartment  in  the  house,  he  is  considered  in  law 
the  occupant  of  the  whole.'  So  one  dwelling  may  become  severed 
and  may  form  two,  as  where  the  owner  let  a  part  and  severs  it  from 
the  other,  and  makes  doors  into  the  street.  If  however,  there  is  any 
internal  communication,  even  by  a  trap  door  and  ladder,  and  that 
seldoiji  used,  if  never  fastened,  there  i.s  no  severance  and  there  is 
but  one  dwelling.'" 

g  314.  To  constitute  a  dwelling  house,  and  confer  upon  it  the  ])rivi- 
lege  and  exemption  of  a  mansion  house  against  entry  under  civil  pro- 
cess to  make  arrest,  or  to  make  a  levy,  it  nwst  at  the  time  be  used  and 
occupied  as  a  dwelling  house.  It  may  have  been  erected  for  and  u.sed 
as  a  dwelling  house,  but  if  it  is  not  actually  so  used  or  occupied  at  the 
time,  it  is  not  a  dwelling  house  within  the  meaning  of  the  law.  It  appears, 
savs  Russell  in  his  works  on  Crimes,  to  be  well  settled  that  unless  the 
owner  has  taken  i)ossession  of  the  house  by  inhabiting  it  personally, 
or  by  some  of  his  lamily,  it  will  not  have  become  his  dwelling  house, 
in  the  proper  meaning  of  the  word.  "  There  are  several  cases  to  this 
effect  which  sufticiently  overrule  any  different  opinion  which  mav  have 
been  formerly  entertained.''  Thus  where  a  tenant  has  taken  possession 
and  put  some  of  his  goods  in  the  house,  while  it  is  under  repairs,  but  no 
one  slept  in  it,  such  house  is  not  the  dwelling  house  of  any  one.     Nor 

1  Cowper,  C.  *  :] Grcenlcrif 's  Ev.  v52.  ''  Scvell,  110. 

s  Watson,  59.  4  Dl.'iok.  Com.  224.  8  Sowill,  110. 

16  John,  287.  s  Sewell,  111.  »  Scwell,  110. 

3  3  In.st.  04.  «  Scwell,  110.  •«•  Sewell,  111. 

Sewell,  110. 

Cowper,  G. 


lOS  OF  AllRKSTS  IN  CIVIL  CASKS. 

will  a  house  be   the  (Iwi-niMi;  hi»use  of  a   tenant,  th<»iit,'h  he  has  taken 
possession,  niter  the  ohl  one  has  quit,  and  has  i)ut  all  his  hirniture  into 
it,  and  has  generally  gone  to  it  in  the  day  time,  if  neither  he  nor  any 
of  his  family  have  yet  slept  in   it.     An<l  though  pers<Mis  sleep  in  a 
house  thus  situated,  yet  if  they  arc  not  of  the  family  of  the  oecupanl. 
as  where  persons  are  procured  to  sleep  there  to  protect  the  house  or 
goods  within,  not  of  the  occupants  of  the  family,  or  a  domestic  servant 
therein,  it  will  not  he  a  dwelling  house.    And  so  where  the  owner  ol  a 
dwellini^  house  has  no  intention  of  going  to   reside  in  it  himself,  and 
merely  puts  some  person  to  sleep  there  at  night,  till  he  can  i;et  a  tenant. 
the  same  rule  prevails;  nor  will  it,  in  such  case,  make  any  dillerence 
if  a  servant  of  the  owner  actually  sleeps  therein  to  protect  the  goods. 
It  is  neither  the  dwelling  of  the  owner,  nor  of  the  servant.     Nor  will 
a  house  be  the  dwelling  house  of  one  who  occupies  it  as  his  place  of 
business  and  dines  there  daily,  but  lodges  with  his  mother  who  resides 
next  door.     And  the  mere  casual   use  of  a  tenement,  as  a  lodging,  or 
the  usinii  it  only  upon  some  particular  occasions,  will  not  be  such  an 
inhabiting  as  will  constitute  such  place  a  dwelling  house,  as  where  a 
servant  sleeps  in    a  barn  for  some  nights  for  the  purpose  of  watching 
thieves,  or  where  a  porter  lies  in  a  warehouse  to  watch  goods.' 

^  31.5.  But  where  the  owner  has  once  entered  upon  the  pos.session 
and  occupation  of  a  dwelling  house,  by  himself  or  some  one  of  his 
family,  it  will  not  cease  to  be  his  dwellinu'  house,  on  account  of  any 
occasional  or  temporary  absence,  even  though  no  |)erson  be  left  in  it. 
And  so,  if  one  have  two  mansions,  and  he  resides  sometimes  with  his 
family  at  one,  and  sometimes  at  the  other,  they  are  both  his  dwellings. 
and  both,  whether  his  family  be  there  or  not,  arc  equally  i)rotected. 
But  when  the  owner  is  so  absent,  there  must  be  an  intention  on  his  part 
to  return  to  his  home,  for  if  he  has  quilted  it  without  any  intention  of 
returning,  it  has  cea.sed  to  be  his  dwelling.  And  it  makes  no  diHerence 
in  such  ca.se  if  the  owner  intends  to  use  the  dwelling  so  left  by  him  as 
his  warehouse,  and  has  some  of  his  workmen  .'^leej)  there  to  guard 
his  property." 

^  310.  This  j)rivilegeof  the  dwelling  house  extends  to  the  outer  door 
only,  or  to  what  is  equivalent  to  the  outer  door,  the  window.*  The 
maxim  that  every  m.in's  house  is  to  him  his  castle  is,  says  Lord  Mans- 
field, one  in  resjHrct  to  politii*al  justice,  and  makes  no  part  of  the 
the  privilege  of  a  debtor  himself,  and  is  to  be  taken  stricthj,  and  not  to 
be  extended  by  any  equitable  analogous  interjtretation,*  An<l.  (juoting 
from  I'oster,  he  says,  "  I  shall  cite  a  very  sensible  and  material 
distinction  from  a  book  in  my  hand,  which  is  this  :  "The  rule  that  every 

1  Umwll  nn <  M)5.    •Scwoll,  111. 

Ko)io<H- on  (  ;..  .  Inip<7,"6. 

»  Ru«k;I1  on  Crimea,  Wb  «  Cowpcr,  7. 


(K*  ARRIOSTS  IN  CIVIL  CASKS.  ]'.>[) 

man's  house  is  liis  cnstle,  wlien  a|»|»Iie(l  to  arrests  on  legal  |)rocess.  has 
hcen  carried  as  far  as  j)oJitical  justice  will  warrant,  and  pciliaiis  I'arther 
than  in  the  scale  of  reason  an<l  sound  policy  they  will  warrant.  But 
in  cases  of  life,  we  must  adhere  to  rules  well  known  and  established. 
But  this  rule  is  not  one  ol'  those  that  will  admit  of  any  extension.  It 
must  therefore,  as  I  have  before  hinted,  bo  confined  to  the  brea'-h  ot 
windows  and  of  outer  doors  intended  for  the  security  of  the  house 
against  jjersons  from  without,  endeavoring  to  break  in."' 

^  317.  If  there  be  but  one  tenement  and  one  occupant  of  a  house 
what  is  the  outer  door  of  such  house,  may  be  readily  determined.  And 
if  the  landlord  lets  out  his  house  as  a  lodging  house,  but  occujiies  a 
pari  of  ii  himself,  it  is  still  one  dwelling.'*  If  difierent  parts  of  a  hou.se 
are  occupied  by  difierent  families,  having  one  common  hall  and  one 
common  entrance,  such  hall  door  is  the  outer  door  of  the  house. - 
Where  a  house  stood  over  a  stable,  in  a  stable  yard,  surrounded  by  a 
wall,  and  there  was  a  hatch  gate  at  the  foot  of  the  stairs  which  led  to 
an  open  gallery,  from  which  there  were  doors  to  the  several  apartments  ; 
and  at  the  top  of  the  stairs  was  a  door  across  that  part  of  the  gallery 
which  led  to  the  chamber  where  the  plaintifi"  was  ;  this  last  door  was 
held  to  be  the  outer  door  of  the  plaintiff^'s  house,  and  that  the  breaking 
into  the  same,  after  having  gained  admission  into  the  yard  was  unlawful.* 
Where  the  owner  let  out  his  house,  but  reserved  to  himself  an  inner 
room,  which  he  occupied  separately,  and  an  officer  having  process 
agaiiist  him,  entered  the  outer  door  when  it  is  open,  it  was  held  that  he 
might  break  open  the  inner  door  of  the  defendant's  apartment  to  come 
at  him.^ 

§  318.  But  if  the  whole  house  is  let  out  to  lodgers,  and  the  owner 
does  not  inhabit  any  part  of  it.  though  there  is  but  one  dooi;^  common 
to  all  the  inmates,  yet,  each  separate  apartment,  occujiied  separately, 
is  a  distinct  mansion,  and  the  outer  door  of  such  separate  apartment  is 
the  outer  door  of  such  mansion.® 

^319.  When  the  officer  is  once  within  the  walls  of  the  house,  bv 
having  entered  peaceably  and  lawfully  at  the  outer  door ;  or  where  he 
lias  lawfully  entered  in  the  pursuit  of  a  prisoner  who  has  broke  away 
from  an  arrest,  he  may  lawfully  break  open  every  inner  door ;  and  the 
door  or  doors  of  a  lodger,  a  windows  box,  chest  or  drawer,  necessary 
to  the  execution  of  his  process,  or  the  retaking  of  his  escaped  prisoner." 

g  320.  But  if  an  arrest  has  actually  been  made,  and  the  person 
arrested  escape,  and  take  refuge  in  liis  dwelling  house,  it  is  not  a  pro- 
tection to  him,  even  on  civil  process,  and  the  officer  in  pursuit  may 

1  Cowpcr,  7.  *  2  Esp.  N.  P.,  605.  6  Scwel,  110. 

-  Sewcll,  111.  So  John,  352.  7  Cow-por,  1.     Allen,  100. 

5  John,  352.  17  John,  127.  1  Backus,  120.  4  Taunt.  626 

i  Allen,  423.  17  John.  127,     6  Hill,  597 

18 


130  OF  AURKSTS  IN  CIVIL  CASKS. 

break  in  and  retake  him.'  And  even  where  the  arrest  is  made  by  the 
orticer  piittini;  his  hand  through  an  open  window,  and  touching  the 
detendanl;  or  where  the  defendant's  l;and  is  out  of  the  window,  and 
the  ollieer  .seizes  it,  he  may  break  ojien  the  outer  door  to  come  at  such 
prisoner.'  And  if  the  sheriff  has  seized  the  defendant's  property  on 
execution  one  (hiy,  and  he  returns  the  next  to  complete  his  inventory, 
on  making  known  his  business,  and  demanding  admittance,  he  may,  if 
it  be  refused,  break  the  outer  door.*  And  if  the  arrest  is  made  in  the 
house,  and  the  olVicer  is  thrust  out  of  it,  he  may  break  in  without 
demand  and  refusal  upon  an  immediate  return  with  assistance.*  And 
if  the  sherifl*  after  a  peaceable  entrance  by  the  outer  door  of  a  house, 
be  Kx-ked  in,  he  may  break  such  outer  door  to  obtain  his  liberty.* 
And  so  too,  if  his  officer,  after  having  obtained  peaceable  entrance,  is 
locked  in,  he  may  break  open  the  outer  door  to  release  him.* 

g  321.  But  it  is  the  defendant's  own  dwelling  which,  by  law,  is  said 
to  be  his  castle.  For  the  house  of  one  is  not  a  castle,  or  privilege,  but 
for  himself  and  his  family,  and  to  his  own  proper  goods,  or  to  those 
which  are  lawfully  and  without  fraud  or  covin  there.  And  therefore, 
the  house  will  not  protect  any  person  who  flies  there,'  or  the  goods  of 
another  which  are  brought  and  conveyed  into  the  house,  to  prevent  a 
lawful  execution,  and  to  escape  the  ordinary  process  of  law.  And  the 
owner  of  the  house  cannot  refuse  admittance  to  the  officer,  on  proper 
demand,  and  the  making  known  his  business.  And  if  he  iloes  so  refuse, 
the  officer  may  break  open  the  door  to  effect  his  purpose.  But  he 
ouL'ht  to  be  very  certain  that  the  defendant  or  his  goods  are  secreted 
within  before  he  resorts  to  a  forcible  entry.** 

(5  3vJ2.  If  the  defendant,  when  arrested,  refuse  to  give  bail,  or  be 
unable  to  do  so,  the  officer  must  detain  him  in  custody,  and  commit 
him  forthwitii  to  jail.  But  he  is  entitled,  in  such  case,  to  the  liberties 
of  the  jail,  on  executing  a  j)roper  bond  for  that  purpose. 

<5  323.  If,  while  the  defendant  is  in  custody  any  other  bailable  writ 
or  order  for  arrest,  be  lodged  with  the  sheriff,  the  oflicer  is  bound,  at 
his  peril,  to  detain  him  until  he  be  regularly  discharged  from  this  second 
writ  or  order.*  But  if  the  first  arrest  was  made  without  jirocess,  or 
on  void  process,  or  after  it  was  returnai)Ie,  or  while  the  defendant  was 
privilcge<l  from  arrest  or  the  like,  he  cannot  be  detained  by  virtue  of 
any  subsequent  process,  however  regular,  unless  such  sui)se(pient  j)ro- 
cess  be  at  the  suit  of  another  plaintifl'  and  without  collusion  with  the 

«  AlW-n,  KW  t  0  MfKlcrn,  178.  '  «  Hl.ick.  Com.  288. 

G  Mtxlcm,  IT.'J.  »  G  llill.fjVt?.  »  G  T.iunl.  '2Uk 

Impry.Tf..  <  1(»  W<Mi(l.  301.  All.n,  10<(.    f)  Cokc,  98. 

Loa,  ?.W.  *  W.iuson,  6lt.  G  Modi-ni,  106. 

8«-w.ll,  110.  •Crc.  Jiic  566.  »  Bcwcll,  108. 
C  Hill,  b'Jl.                              Imiwy,  76. 


ARllEST  AND  HAIL  UNDER  TIIH  CODK.  KU 

party  who  caused  the  first  arrest,'  or  the  shcrilV.-  In  all  such  cases, 
the  court  will  discharge  him  from  arrest  and  detention  upon  such 
second  jn'occss. 

g  324.  When  a  sherilF  or  other  oflicer  shall  arrest  any  person  by 
virtue  of  any  mesne  or  final  ])rocess,  or  by  virtue  of  any  other  civil 
process,  he  shall  not  charge  such  prisoner  with  any  sum  of  money,  or 
demand,  or  receive  from  him  any  sum  of  money,  or  any  valuable  thing, 
for  any  drink,  victuals  or  other  thing,  whatsoever,  furnished  or  provided 
for  such  otlicer,  or  for  such  prisoner,  at  any  tavern,  ale  house  or  i)ublic 
victuallinLj  or  drinldns:  house.  And  no  sheriff  or  officer,  who  shall  have 
arrested  any  person,  shall,  while  such  person  is  in  custody,  demand  or 
receive  any  gratuity  or  reward,  upon  any  pretence  whatever,  for  keeping 
such  prisoner  out  of  jail,  or  for  waiting  for  such  j)risoner  to  find  bail 
or  agree  with  his  adversary,  or  for  waiting  for  any  other  purpose.' 

g  3'25,  The  same  rule  in  reference  to  the  treatment  of  a  prisoner  on 
arrest  in  criminal  cases,  applies  to  arrests  in  civil  matters.*  The  sheriff 
must  not  beat,  or  strike  or  assault  him.  But  if  the  prisoner  draws  a 
weapon,  the  oilicer  may  justify  an  assault  and  battery.'  And  a  sheriff 
has  no  right  to  load  an  unresisting  debtor,  who  quietly  submits  to  his 
authority,  with  bonds  and  fetters.* 

CHAPTER  XVIII. 

ARREST^AND  BAIL  UNDER  THE  CODE. 

g  326.  By  the  provisions  of  the  Code  of  procedure  an  order  for  the 
arrest  of  a  defendant  has  been  substituted  for  the  writ  of  capias  ad 
respondendum.  And  it  is  declared  that  no  person  shall  be  arrested  in 
a  civil  action,  except  as  provided  by  the  said  Code  ;  but  this  provision 
shall  not  affect  the  act  to  abolish  imprisonment  for  debt,  and  to  punish 
fraudulent  debtors,  passed  April  2G,  1831,  or  any  act  amending  the 
same,  nor  shall  it  apply  to  proceedings  for  contempts.^  It  has  also  been 
determined  that  it  does  not  abolish  the  writ  of  ne  exeat? 

^  327.  An  order  for  the  arrest  of  a  defendant  must  first  be  made  by 
a  judge  of  the  court  in  which  the  action  is  brought,  or  by  a  county 
judge.'  If  the  action  be  against  one  for  usurping  any  office,  and  the 
defendant  is  ciiarged  with  receiving  fees  or  emoluments  belonging  to 
the  office,  the  order  for  arrest  must  be  granted  by  a  judge  of  the  supreme 
court.'"  The  order  for  the  arrest  may  be  made  to  accompany  the 
summons,  and  be  served  therewith,  or  it  may  be  made  and  served  at 
any  time  afterwards,  before  judgment." 

'  Graham's  Pr.  144.  *  Ante,  <j67.  8  Post,  Ac  exeai. 

2  Sewell,  130.  s  SewoU,  106,  9  Code,  ^180. 

3  2  R.  S.  126,  %{)\,  2.  6  2  Cow.  185.  lo  Code,  ^435. 

Id.  670,  ^^1,  2,  4th  ed.^        7  Code,  ^178.  "  Code,  183. 


132  ARREST  AND  BAIL  UNPI-.R  Til  P.  CODE. 

^  :J28,  The  order  sliall  n-quire  tlu'  slicnH'  of  llio  county  where  the 
defendant  may  be  found,  ft)rthwith  to  arrest  him  and  hold  him  to  hail 
in  a  specified  sum.  and  to  return  the  order  at  a  time  and  place  therein 
mentioned,  to  the  jilaintilV  or  attorney  by  whom  it  shall  be  subscribed 
or  indorsed.'  It  will  be  seen  hereafter  that  the  bail  to  be  taken  on  the 
arrest  of  a  defendant  in  an  ordinary  action,  will  difler  greatly  from 
that  roqiruvd  upon  an  arrest  made  under  the  third  subdivision  of  the 
one  hundred  ami  seventy-ninth  section  of  the  Code,  concerning  actions 
to  recover  the  possession  of  personal  property  unjustly  detained,  where 
the  |)ropcrtv  or  any  part  thereof  has  been  concealed,  removed  or  dis- 
posed of,  so  that  it  cannot  be  found  or  taken  by  the  sherill',  and  with 
the  intent  that  it  should  not  be  so  found,  or  taken,  or  with  the  intent  to 
deprive  the  plaintifl'  of  the  benefit  thereof.  In  the  ordinary  case  of 
converting  property,  or  detaining  it  in  hostility  to  the  claims  ol  the 
true  owner,  the  condition  of  the  undertaking  will  be  that  the  defend- 
ant w'ill  at  all  times  render  himself  amenable  to  the  process  of  the 
court,  during  the  pendency  of  the  action,  and  to  such  as  may  be  issued 
to  enforce  the  judgment  therein.*  But  the  undertaking  on  an  arrest, 
under  the  said  third  subdivision,  must  be  conditioned  for  the  payment  to 
the  plaintiir  of  such  sum  as  may,  for  any  cause,  be  recovered  against 
the  defendant.^  Usually  the  order  does  not  indicate  under  which  subdi- 
vision the  same  was  granted,  and  it  is  left  for  the  sheriirio  determine 
this  fact  from  the  aflidavit.  And  it  is  very  important  that  he  shoulil  do 
so  correctly.  To  warrant  the  holding  to  bail  in  the  latter  case,  the 
aflidavit  must  sliow  that  the  property  sought  to  be  recovered  was 
removed  after  suit  brought,  with  intent  to  prevent  its  Ijeing  taken  or 
found  by  the  sherifl',  or  with  intent  to  deprive  the  plainlilVof  the  benefit 
thereof;  or  if  the  disposition  or  removal  took  place  before  the  suit 
was  brought,  it  must  appear  to  have  been  done  with  intent  to  render 
ineflectual  the  proceedings  in  a  suit,  which  the  defendant  knew,  or  had 
reason  to  apprehend  the  plaintiil'  intended  to  bring  to  recover  posses- 
sion of  the  ]>roj)erty.^ 

^  329.  The  aflidavit  upon  which  the  order  of  arrest  is  granted,  as 
well  as  the  order  of  arrest,  shall  be  delivered  to  the  sherifl',  to  whom 
Buch  order  is  directed.'  It  is  usual  also  for  the  attorney  to  prej)are 
and  deliver  to  the  sherifl'  a  copy  of  such  aflidavit  and  order,  at  the 
lime  of  the  delivering  to  him  of  the  order  for  execution,  to  be  delivered 
by  him  to  the  defendant,  on  being  arrested.  If  the  attorney  does  not 
prepare  and  deliver  such  coj)ies  to  the  sherifl' it  will  Ik;  tlu-  duty  ol  the 
latter  to  j)rei)are  them  himself. 

2  '.i'.iO.  The  sherifl' to  whom  such  order  is  directed  and  delivered  for 

•  Code, ^183.  <  K  How.  Pr.  U.  111. 

"Code,  6187.  :5  H.iiKlf.  7U7. 

»  Code,  ^^187,  211.  »  Cwle.  ^184. 


ARREST  AND  BAIL  UNDER  Till-:  CODE.  133 

execution,  shall,  if  the  same  is  in  due  form,  and  is  not  void  upon  its 
face  for  want  of  jurisdiction  m  the  ollicer  who  grants  it,'  execute  the 
order  by  arresting  the  defendant,  and  keeping  him  in  custody  until 
discharged  by  law  ;  and  may  call  the  power  of  the  county  to  his  aid, 
in  the  execution  of  the  arrest,  as  in  case  of  process.*  Such  arrest 
must  be  made  if  the  defendant  can  be  found  in  the  county  on  or  before 
the  time  fixed  in  said  order  for  the  return  of  the  same.  The  manner 
of  making  the  arrest,  as  well  as  the  times  and  places  in  which  it  may 
be  done,  has  already  been  pointed  out.^  On  making  such  arrest  the 
sheriir  shall  deliver  to  the  defendant  a  copy  of  the  original  affidavit  on 
which  the  order  was  granted,  and  also  a  copy  of  the  order,  though 
if  he  fails  to  do  so,  it  is  questioned  whether  the  arrest  would  be 
irregular.  At  all  events  some  of  the  courts  are  of  opinion  that 
where  the  objection  is  taken,  that  leave  should  be  granted  to  deliver 
a  copy  after  the  arrest,  upon  the  payment  of  costs.*  And  it  has 
been  held  that  a  proper  return  of  service  would  be  conclusive  in  such 
case.^ 

g  331.  If  upon  such  arrest  being  made,  the  defendant  will  not  give 
the  undertaking  in  the  amount  mentioned  in  the  order,  or  does  not 
make  the  deposit  hereinafter  mentioned,  in  lieu  of  bail,  it  will  be  the 
duty  of  the  sherift'  forthwitii  to  convey  him  by  the  most  direct  route, 
to  the  jail  of  the  county,  there  to  detain  him  until  he  gives  the  under- 
taking required,  or  makes  the  necessary  deposit,  or  gives  the  proper 
bond  for  the  liberties  of  the  jail. 

§  332.  At  any  time  after  the  arrest,  and  before  execution  issues,  the 
defendant  shall  be  discharged  from  such  arrest,  either  by  giving  bail 
or  depositing  the  amount  mentioned  in  the  order  of  arrest.®  Such  bail 
may  be  given  by  causing  a  written  undertaking  to  be  executed  by  two 
or  more  bail,  stating  their  places  of  residence,  and  occupations,  (each 
of  whom  must  be  a  resident  and  householder  or  freeholder  within  the 
state,  and  worth  the  amount  specified  in  the  order,  over  and  above  all 
debts  and  liabilities,  and  exclusive  of  property  exempt  from  execution,^) 
conditioned  that  the  defendant  shall  at  all  times  render  himself  amen- 
able to  the  process  of  the  court,  during  the  pendency  of  the  action, 
and  to  such  as  may  be  issued  to  enforce  the  judgment  therein.^  Such 
undertaking  is  bail  for  appearance  to  answer  the  process  of  the  court.' 
It  is  the  sheriflf's  duty  to  prepare  the  bond  or  undertaking.^"  The  sheriff 
should,  before  receiving  any  such  undertaking,  require  the  parties 
thereto,  to  justify  either  before  himself,  or  any  officer  authorized  to  take 
affidavits  to  be  read  in  the  court  in  which  the  proceedings  are  com- 

>  Ante,  §()282,  &c.  «  3  Code,  Rep.  183.  7  Code,  ()194. 

2  Code,  V)185.  9  How.  Pr.  R.  256.  »  Code,  ^187. 

Ante,  ^86.  s  8  How.  Pr.  R.  364.  »  3  Sandf.  707. 

3  Ante,  ^()28,  &c.  «  Code,  »^186.  »"  Sewell,  455. 


134  ARRIOST  AND  DAIL  UNDER  Tim  CODE. 

meiired  ;  an<l  then  ihai  the  sureties  acknowledtre,  or  that  the  subscrib- 
in'4  witness  thereto,  it  there  be  one,  prove  the  same  belore  some  ollicer 
authorized  to  take  the  acknowledgment  of  deeds,  for  l»y  the  rules  of 
the  court,  no  such  undertakini;  can  be  received  or  iiU'd  until  the  same 
is  proved  or  acknowledged  in  like  manner  as  deeds  of  real  estate.' 
5  333.  The  qualifications  of  b:iil  nnisi  be  as  follows  : 

1.  Each  of  them  must  be  a  resident,  and  householder  or  freeholder, 
within  the  State  : 

2.  They  must  each  be  worth  the  amount  specified  in  the  onler  of 
arrest,  exclusive  of  pro|)erty  exemj>l  from  execution  ;  but  the  judge 
on  justification,  may  allow  more  than  two  bail  to  justify  severally  in 
amounts  less  than  that  expressed  in  the  order,  if  the  whole  justification 
be  equivalent  to  that  of  two  suflicient  bail.'  The  sheritl',  however, 
would  seem  to  be  authorized  to  take  two  sureties  only,  each  of  whom 
should  be  worth  the  requisite  sum.  He  must  in  a  proper  case  take 
bail,  provided  the  sureties  otlered  are  unexceptionable  and  sulficient.' 
Any  person  having  the  qualifications  mentioned  may  be  bail  on  arrest 
on  any  such  order,  who  is  of  lawful  age,  except  persons  legally  inca- 
pacitated from  acting,  as  a  married  woman,  or  an  idiot,  a  person 
declared  to  be  of  unsound  mind,  or  an  habitual  drunkarti,  for  whom  a 
committee  has  been  appointed ;  and  attorneys,  their  partners  and 
clerks,  whether  they  be  the  attorneys  in  the  action  or  not ;  sherilFs  and 
their  de|»uties,  turnkeys  and  jailers,  and  persons  of  infamous  character.* 

^  331.  The  sheriir  need  not  personally  arrest  the  defendant  before 
taking  bail,  for  it  will  be  good,  though  no  arrest  be  made.*  So  it  may 
be  taken  before  the  writ  or  order  is  delivered  to  the  sherifTfor  execu- 
tion, but  not  before  it  is  issued.'  And  it  may  be  taken  any  lime  before 
execution.^  The  sheritV  may  discharge  the  defendant  from  arrest  on 
mesne  i)rocess  without  bail,  if  he  have  him  before  i)roce.ss  atiainst  the 
person  of  the  defendant  is  issued.  But  if  he  does  so  discharge  him  and 
he  has  him  not  at  such  time,  it  is  an  escape  and  he  will  be  liable  as  bail.' 

3  33.'i.  Althoutrh  the  bail  taken  by  the  sherilf  must  be  in  the  form 
prescribed,  yet  a  bond  to  the  plaintiU'is  good.  So  any  other  contract 
or  undertaking  in  writing  to  the  plaintill*,  for  the  defendant's  api>car- 
ance,  will  bo  valid,  and  if  such  an  undertaking  be  given  by  the 
defendant's  attorney,  which  is  usual  in  practice,  the  court  will  in  general 
enforce  it  by  attachment.  It  must,  however,  bo  to  the  plaintill'  by 
name,  or  to  his  attorney  for  him,  and  not  to  th(!  sherilf,  otherwise  the 
court  will  tiol  enforce  it.* 

I  Rnlcii  Hnp.  Court,  71  ♦  l'»  J<-lin.  6%.  »  (ir.ili.im  s  I'r.  1 IC. 

«  Cwlc,  i",!'^.  2t)J«\m.   \2'.l  ♦  W;»l.H..ri,  HH. 

»  7  Jobo.  612.  (:..wi»r,  H'JH.    1  Wcud.  36.  '  <'"<l<',  <A>^<''. 

2  n..v  A,  I'ul.  150.  »  <'"Mlr,  (pw. 

A  Tcnu  R.  410.  »  Uabanu  s  Tr.  117, 


ARRKST  AND  HAH.  UNI)i:il  THE  CODi:.  135 

^  .^Sf).  The  (lefcndanl  iiiiiy,  :it  the  time  of  his  arrest,  instead  of  giving 
bail,  dc'|)()sit  with  the  .sheiill'the  aiiioimt  inentioiicd  in  the  order.  The 
sherin'shall  thereupon  give  the  deren(hint  a  certificate  of  the  deposit,  and 
the  defendant  shall  be  discharged  out  of  custody  ;  and  the  sherifi' shall, 
within  four  days  after  the  deposit,  ]»ay  the  same  into  court;  and  shall 
take  from  the  oflicer  receiving  the  same,  two  certifi<-ates  of  sur.h  pay- 
ment, the  one  of  which  he  shall  deliver  to  the  ])lainlifl'  and  the  other 
to  the  defendant.  Tor  any  default  in  making  such  payment,  the  same 
proceedings  maybe  had  on  the  oflicial  bond  of  the  sheriff  to  collect  the 
sum  deposited,  as  in  other  cases  of  dclinrpiency.  At  any  time  before 
iudirment,  bail  may  be  substituted  for  the  deposit,  and  the  judge  before 
whom  the  justification  is  had,  shall  direct  in  the  order  of  allowance, 
that  the  money  deposited  be  refunded  by  the  sheriff  to  the  defendant, 
and  it  shall  be  refunded  accordingly.' 

^337.  Within  the  time  limited  for  that  jiurpose,  the  sheriff  shall 
deliver  the  order  of  arrest  to  the  i)laintiff  or  attorney  by  whom  it  is 
subscribed,  with  his  return  indorsed,  (and  if  there  is  a  proper  return, 
it  will  be  conclusive  in  the  action,)  with  a  certified  copy  of  the  under- 
taking of  the  bail.  The  i)laintiff  within  ten  days  thereafter,  may  serve 
upon  the  sheriff,  a  notice  that  he  does  not  acre]it  the  1)ail,  or  he  shall 
be  deemed  to  have  accej)tcd  it,  and  the  sheriff  shall  be  exonerated  from 
liability.'^ 

5  338.  On  the  receipt  of  notice  that  the  plaintiff  does  not  acce)>tthe 
bail,  the  sheriff  or  defendant  may  within  ten  days  thereafter,  give  to 
the  plaintiff  or  attorney  by  whom  the  order  of  arrest  is  subscribed, 
notice  of  the  justification  of  the  same  or  other  bail,  (specifying  the 
places  of  residence  and  occupations  of  the  latter,)  before  a  judge  of 
the  court  or  county  judge,  at  a  specified  time  and  place ;  (which 
must  be  within  the  county  where  the  arrest  was  made,  or  the  bail 
reside,)  and  the  time  not  to  be  less  than  five  nor  more  than  ten  days 
thereafter.  In  case  other  bail  be  given,  there  shall  be  a  new  under- 
taking in  the  form  mentioned.  For  the  }>urpose  of  justification,  each 
of  the  bail  shall  attend  before  the  judge  at  the  time  and  place  mentioned 
in  the  notice,  and  may  be  examined  on  oath,  on  the  part  of  the  plaintiff, 
touching  his  sufficiency,  in  such  manner  as  the  judge,  in  his  discretion, 
may  think  proper.  The  examination  shall  be  reduced  to  writing  and 
subscribed  by  the  bail,  if  required  by  the  plaintiff.  If  the  judge  find  the 
bail  sufiicient,  he  shall  annex  the  examination  to  the  undertaking^ 
endorse  his  allowance  thereon,  and  cause  them  to  be  filed  witluhe  clerk 
of  the  court  in  which  the  action  is  pending;  and  the  sheriff  shall  there- 
upon be  exonerated  from  liability.     If  the  security  fail  to  justify  at  the 

i  Code,  197-199.  2  Code,  <)102. 

8  Uow.  Pr.  R.  353. 


136  AllRKST  AND  T.AIL  VSDKR  Till:  CODE. 

lime,  the  court  or  judne  tlun"!".  or  a  roiinty  jutlL'o.  luav  L^r.uit  rurllier 
time  for  ihcin  to  justify. ' 

^  331*.  Itnil  himll  not  lio  iialile  ujioii  tlirir  uiuU  rUikui,:;,  lakrii  u|)on 
an  arrest  in  any  case  except  under  the  provisions  of  the  thin!  snbdi- 
visioD  of  section  one  hundre<l  and  seventy-nine  of  the  Code,  until, 

1.  An  execution  against  the  jiroj)erty  of  the  defendant  shall  have 
been  issued  to  the  sherillof  the  county  in  which  such  defendant  was 
originally  arrested,  and  the  same  shall  liave  been  returned  by  such 
sherifTun-<atisfie«l,  in  whole  o;*  in  part:  and, 

2.  An  execution  against  the  body  of  the  defendant,  having  ut  least 
fifteen  days  between  the  teste  and  return  day  thereof,  shall  have  been 
issued  to  the  same  sherilV,  and  by  him  relumed,  that  the  defendant  could 
not  be  found  in  his  county.  Upon  any  such  execution  being  issued  and 
delivered  to  the  sherilf,  it  shall  be  his  duty  to  use  all  reasonable 
endeavors  to  execute  the  same,  notwithstanding  any  directions  he  may 
receive  from  the  plaintiff  or  his  attorney.  And  in  an  action  against  the 
bail,  they  may  plead  that  executions  against  the  property  and  against 
the  body  of  the  defendant  in  the  original  suit,  were  not  issued  as  herein 
directed  ;  or  that  they  were  not  issued  in  sufficient  time  to  enable  the 
sheriff  to  execute  the  same ;  or  that  directions  were  given  by  the 
phiintiir  or  his  attorney  to  prevent  the  service  of  the  said  writs,  or  either 
of  them  ;  or  that  any  other  fraudulent  or  collusive  means  were  used  to 
prevent  such  service  ;  and  if  any  such  defence  be  cslaMisIied,  it  shall 
entitle  the  bail  to  a  verdict." 

^  310.  The  bail  may  be  exonerated  either  by  the  tlealli  of  the 
defendant,  or  his  imprisonment  in  a  stale  prison,  or  by  his  legal  dis- 
charge from  the  obligation  to  render  himself  amenable  to  the  process, 
or  by  his  surrender  to  ihe  slierilfof  the  county  where  he  was  arrested, 
in  execution  thereof,  within  twenty  days  after  the  commencement  of 
the  action  against  the  bail,  or  within  such  farther  lime  as  may  be  granted 
by  the  court.*  The  bail  will  also  be  relieved  where  the  defendant  was 
not  liable  to  arrest.^  And  where  the  defendant  has  been  discharged 
under  the  insolvent  laws,  the  bail  will  be  released  ;  and  in  such  case  the 
c<jurtwilll  not  in(juirc  into  the  regularity  of  the  discharge.*  So  too, 
they  will  be  discharged  if  the  plainlifl^  gives  time  to  the  j»rincipal.* 
When  bail  is  exonerated  on  payment  of  costs,  ihey  nnist  seek  the 
plaintiff,  and  pay  them,  without  demand  or  presentment  of  the  bill. 

'^  311.   At  any  lime  before  a  failure  to  comply  with  their  undertaking. 

'  C"         *  '■•6.  »C.m1,-,U'.»1.  •  lO-IoliM.  r>'.(5. 

II  ^3.  *  II  W«i..l.  Hl'j.  22  Wend.  612.     l:t  W.nd.  n75. 

«  2  I'.  ■  •'  WvikI.  l.'U.  ar.iham'H  Tr.  IIU 

M  Jl     "    C70. 

7  \s 

17  Wend.  «10. 


ARREST  AND  I'.AIL  L'NDKIl  TfTF,  rODI-:.  Wr, 

the  bail  may  surrender  the  defendant  in  their  exoneration,  or  he  may 
surrender  himself  to  the  sIicriH'  of  the  county  whore  he  was  arrested, 
in  the  following  manner : 

1.  A  certified  copy  of  the  undertaking  of  the  bail  shall  be  delivered 
to  the  shcrifl',  who  shall  detain  the  defendant  in  his  custody  thereon,  n: 
upon  an  (trderof  arrest,  and  shall,  by  a  certificate  in  wriliuLS  acknowl- 
edge the  surrender : 

2.  Upon  the  production  of  a  copy  of  the  undertaking  and  sherifiT's 
certifi(!atc,  a  judge  of  the  court,  or  county  judge,  may,  upon  a  notice  to 
the  plaintifi",  of  eight  days  with  a  copy  of  the  certificate,  order  that  the 
bail  be  exonerated  ;  and  on  filing  the  order,  and  the  papers  used  on 
such  application,  they  shall  be  exonerated  accordingly.  But  this  shall 
not  apply  to  an  arrest,  for  the  cause  mentioned  in  subdivision  three  of 
section  one  hundred  and  seventy-nine  of  the  Code,  so  as  to  discharge  the 
bail  from  an  undertaking  given  to  the  effect  provided  by  section  two 
hundred  and  eleven  of  the  Code.' 

^  312.  For  the  purpose  of  surrendering  the  defendant,  the  bail,  at 
any  time  or  •place  before  they  are  finally  charged,  may  themselves 
arrest  him,  or  by  written  authority  endorsed  on  a  certified  copy  of  the 
undertaking,  may  empower  any  person  of  suitable  age  and  discretion, 
to  do  so."  The  rights  and  powers  of  the  bail  are  the  same  in  civil  as 
in  criminal  cases ;  and  they  may  seize  the  defendant  in  the  same 
manner  and  times  and  places,  in  the  former  as  in  the  latter  case. ^  And 
they  may  surrender  him  though  they  have  not  justified,  and  it  is  not 
necessary  that  all  the  bail  should  unite  in  the  surrender.^ 

^  313.  If,  after  being  arrested,  the  defendant  escape,  and  is  not 
retaken  by  the  sheriff,  or  be  rescued,  or  bail  be  not  given  or  jus- 
tified, or  a  deposit  be  not  made  instead  thereof,  the  sherifl*  shall  himself 
be  liable  as  bail.  But  he  may  discharge  himself  from  such  liability  bv 
the  giving  and  justification  of  b;iil  as  required  to  be  taken  on  the  arrest, 
at  any  time  before  process  against  the  person  of  the  defendant  to 
enforce  an  order  or  judgment  in  the  action,'  which  bail  may  surrender 
the  defendant  without  justifying.'  And  it  has  been  held  in  two  late 
cases  in  the  New  York  common  pleas,  that  where  the  sherilV's  liabilitv 
becomes  fixed  as  bail  in  any  of  the  above  cases,  he  has  all  the  rights  of 
bail.  He  may  retake  the  defendant  if  he  choose,  as  bail,  without  farther 
process,  and  without  putting  in  bail,  in  the  same  manner  as  bail  mav 
do  ;  and  he  may  be  released  or  exonerated  from  such  liabilitv  in  the 
same  cases  and  in  the  same  manner  as  bail.^  If  the  defendant  escape, 
the  sheriff  may  retake  him  I>y  virtue  of  the  original  arrest,  at  anv  time 

1  Code,  ^188.  *  7  How.  Tr.  R.  212.  «  Pcakes  N.  P.  169. 

»  Code,  ^189.  5  Code,  ^201.  2  Strange,  876. 

3  Aote,  ^^132-134.  ,  7  8  How.  I'r.  R.  180,  188. 

19 


138  OK  Till-:  SI-UVICK  OF  THE  SUMMONS. 

before  the  return  «lay  of  the  onlcr.  whether  the  csi:H)e  he  voluntary  or 
ne^lisrrnt.  Hut  it"  the  e8ca}H-  he  ncj;H^ent.  that  is,  if  it  occurred  without 
the  kno\vleclj?e  or  assent  of  the  ollicer,  then  he  may  retake  him  hy 
virtue  of  such  oriirinal  arrest,  at  any  time,  wh.-ther  before  or  alter  the 
return  day.  in  the  same  manner  and  time  and  phices  as  bail  may  take 
their  principal.'  The  bail  taken  upon  the  arrest  shall,  unless  they 
justifv.  or  other  hail  be  pven  or  justified,  be  liable  to  the  sherilV  by 
action  f..r  damages  which  he  m:»y  sustain  by  reason  of  such  ou)ission.' 

5  :M  1.  Where  an  order  is  made  for  the  arrest  of  the  defendant,  under 
the  thinl  subdivision  of  section  one  hundred  and  seventy-nine  of  the 
Code,  in  a  case  where  property  is  sought  to  be  recovere«l,  which  is 
claimed  to  be  unjustly  detained,  and  where  it  or  any  part  thereof,  has 
been  concealed,  removed  or  disposed  of,  .so  thai  it  cannot  be  found  or 
taken  by  the  sherill*,  and  with  the  intent  that  it  should  not  be  so  found 
or  taken,  or  with  the  intent  to  deprive  the  plaintiff  of  the  benefit  thereof, 
if  the  (k'ieudant  is  arrested,  the  undertaking  shall  be  conditioned  for 
the  delivery  of  the  property  to  the  plaintiti;  if  such  delivery  be  adjudged, 
and  for  the  payment  to  him  of  such  sum  as  may,  Ibr  any  cause  be 
recoverexl  against  the  defendanL^"  The  bail  in  this  case  is  virtually  for 
any  judgment  the  plaintiff  may  recover  in  the  transaction.*  And  the 
bail  cannot  be  exonerated  from  their  liability  under  the  provisions  of 
section  one  hundred  and  eighty-eight  of  the  Code,  relative  to  the  sur- 
render of  a  defendant  on  arrest.* 

5  3 15.  Within  ten  days  after  the  arrest,  the  sheriff  shall  file  the 
original  affidavits  on  which  the  order  of  arrest  was  made,  with  the 
clerk  of  the  court  where  the  action  is  pending.* 

(5  31G.  After  the  bail  bond  or  undertaking  is  executed,  or  a  deposit 
in  lieu  of  bail  is  made,  or  the  sheriff  has  received  writlm  authority  from 
the  plaintiff  for  the  defendant's  discharge,  he  should  then  search  for 
detainers  for  him,  or  whether  similar  process  be  then  in  the  hands  of 
his  deputies  ;  and  if  there  be  none,  he  should  discharge  him  from  custody, 
on  payment  of  the  fees  for  the  bail  bond.  And  the  sheriff  is  allowed  a 
reasonable  time  to  search  for  detainers,  before  ho  so  discharges  the 
defendant.^  And  he  may  detain  the  defendant  until  his  ieoi  are  paid, 
but  the  plaintiff's  attorney  has  no  lien  upon  the  defendant  for  his  costs." 

en  WTVAl    XIX. 

OF  Till-:  HKIIVKJK  OK  THK  SUMMONS. 

(3  317.  The  summons  may  be  served  by  the  sheriff  of  the  county 
where  the  defendant  may  be  found,  or  by  any  other  j)erson  not  a  parly 

>AntP,^132                              ♦  VmT.  7  H.-W.11.  171. 

•  Cwle,  V-SfW.                              6.  W.iUon    108. 

»  Code,  (^187,  211  •  li" "I'  Court,  88.  •  Wataon,  108. 


OF  THE  SERVICE  OF  THE  SUMMONS.  l.TJ 

to  the  Jirtion.'  As  ;iny  person  may  serve  the  summons,  ;i  shoriff  may 
do  so  in  any  j)laco  within  the  state,  whether  within  liis  county  or 
beyond  its  Hmits  ;  but  in  such  hist  case,  the  proof  of  service*  must  be 
the  same  as  where  such  service  is  made  Ijy  a  private;  iiidivi(hi;d.  'I'he 
certificate  of  the  sherifT  will  not  lie  sullicient  in  such  casc.^ 

^  .'MS.  The  service  shall  be  made,  and  the  summons  returned,  with 
proof  of  such  service  to  the  person  whose  name  is  subscribed  thereto, 
with  all  reasonable  dili/^ence,^  And  the  jierson  subscribini,'  the  sum- 
mons, may,  at  his  f)ption,  by  indorsement  thereon,  fix  a  time  for  the 
service  thereof  and  the  service  shall  be  made  by  the  ofTicer  accord- 
ini,'lv.*  If  the  sheriff  fails  to  make  return  of  service  of  the  summons, 
by  the  time  fixed  thereon  within  which  such  service  shall  be  made,  or 
within  a  reasonable  time,  if  no  such  time  is  so  fixed,  the  sherifl'  may 
be  proceeded  against  as  in  other  cases  of  neglect  to  make  due  return 
of  process.' 

^  3 19.  The  service  may  be  made  at  the  same  time  and  places  as  any 
other  process  in  civil  cases. ^  But  in  making  the  service  the  oflicer  has 
no  more  power  than  any  individual.  He  may  enter  the  defendant's 
house  in  the  day  or  the  night  time  to  make  the  service,  peacefully  if 
he  can,  but  he  has  no  right  to  enter  forcibly  or  against  the  owner's 
wishes. 

^  350.  The  summons  shall  be  served  by  delivering  to,  and  leaving 
with  the  person  served,'  a  copy  thereof  as  follows  : 

1.  If  the  suit  be  against  a  corporation,  to  the  president  or  other  head 
of  the  corporation,  secretary,  cashier,  treasurer,  a  director  or  managing 
agent  thereof;  but  such  service  can  be  made  in  respect  to  a  foreign 
corporation  only  when  it  has  property  within  this  state,  or  the  cause 
of  action  arose  therein.^  And  the  managing  agent  must  be  one  whose 
agencv  extends  to  all  the  transactions  *of  the  company ;  one  who  is 
engaged  in  the  management  of  the  corporation  in  distinction  to  the 
management  of  a  particular  branch  or  department  of  its  business.' 
This  however  must  be  understood  as  having  reference  to  the  regu- 
larity of  the  proceedings  in  the  action,  and  not  as  to  the  duty  of  the 
sherifi",  in  the  service  of  such  process.  If  any  summons  against  a  cor- 
poration be  delivered  to  him  for  service,  it  will  be  his  duty  to  make 
the  best  service  that  he  can  under  the  circumstances,  and  make  return 
thereof  according  to  the  fact : 

2.  If  against  a  minor  under  the  age  of  fourteen  years,  to  such  minor 
personally,  and  also  to  iiis  father,  mother,  or  guardian,  or  if  there  be 

>  Code,  133.  s  Ante,  ^40.                              8  Code,  §134. 

5  How.  Pr.  R.  341.  «  Ante,  chs.  5,  16.                    »  4  How.  Pr.  R.  275. 

«  Ante,  ^47.  ^  RuU.s  Sup.  Court,  84;               5  Id.  183. 

3  10  Woiid.  572.  2  Code,  Rep.  51. 
*  Code,  §133. 


140  OF  TIIK  SKRVICK  OF  TIIR  SUMMONS. 

uvuc  withm  ilio  stair,  then  to  any  person  luivini^  the  care  and  control 
of  such  minor,  or  with  whom  ho  shall  reside,  or  in  whose  service  he 
shall  be  employed  : 

3.  If  aijainsl  a  person  judi<'ially  derl:ue<I  to  be  of  sound  mind,  or 
incapable  f)!"  conducting  his  own  allairs  in  conso<|uence  (»!"  habitual 
drunkenness,  and  for  whon>  a  committee  has  been  appointed,  to  such 
commillee  and  lo  the  defendant  personally  : 

4.  In  all  other  cases  l«>  ihc  defendant  personally  :' 

5.  If  the  defendant  resides  in  this  state,  the  ofiicer  shall  make  proper 
and  diliizcnt  elVort  lo  serve  such  process  upon  him,  and  if  he  cannot  be 
be  found,  or  if  found,  avoids  or  evades  service,  such  olTicer  shall  make 
return  that  proper  and  diligent  effort  has  been  made  lo  serve  such 
process  on  the  defendant,  and  that  such  defendant  cannot  be  found,  or 
avoids  or  evades  such  service,  so  that  the  same  cannot  be  nuule  per- 
sonally by  such  proper  diligence  and  efibrt :' 

(5.  If  an  order  shall  be  made  under  the  statute  directing  tiie  mode  of 
serving  the  summons  upon  any  defendant  in  the  case  last  mentioned, 
the  same  shall  be  served  by  the  ofiicer  in  the  manner  pointed  out  by 
such  order.' 

^.'}51,  The  proof  of  service  of  a  summons  and  of  the  complaint  or 
notice,  if  any  accompany  the  same,  must  be  as  follows  : 

1.  If  served  by  the  sheriff  within  his  county,  his  certificate  thereof:  or, 

2.  If  served  by  any  other  person,  or  if  served  by  the  sherifl*  out  of 
his  county,  his  afiidavit  thereof:  or, 

:{.  The  written  admission  of  the  defendant. 

Such  certificate,  affidavit  or  achnission  must  stale  llietimo  and  place  of 
the  service;  upon  whom  served, and  how  served,  and  it  must  also  show 
in  what  action  the  service  was  made.  If  the  certificate,  afiidavit  or 
.ulmission  is  indorsed  upon  the'summons,  or  annexed  thereto,  it  will  be 
sufiicient  to  refer  to  it  for  the  title  of  the  cause  ;  but  if  there  be  no  copy, 
then  the  title  of  the  cause,  with  the  name  of  the  court  should  be  given. 
When  such  scryice  is  made  by  any  other  per.son  than  the  sherifl' within 
his  county,  it  shall  be  necessary  for  such  person  to  state  in  his  afiidavit 
of  service,  when,  and  at  what  particular  i>la(;e  ho  served  the  same,  and 
that  he  knew  the  person  served  to  be  the  jierson  mentioned  and 
described  in  the  surrunon.s,  as  defendant  therein,  and  also  slate  in  his 
affidavit,  whether  he  left  with  the  defendant  such  copy,  as  well  as 
delivered  it  l(»  him.*  In  the  case  of  a  defendant  who  cannot  be  found, 
the  proof  of  the  failure  lo  serve  may  be  by  <-erlificate  or  afiidavit  of 

'  CcKlc,()i:i4.  m'.mI,..  ^;,i:iK. 

«  Lawn  1H63,  ch.  ftll,  <A.  K<il.  h  Hup.  Tourt,  84. 

1  Lawn  1H63,  ch.  611,  ^1.  ^>  Huw   I'r   U    3-11. 
AuW,  ^289. 


CLAIM  AND  DKLIVIOIIY  OF  I'KRSOiNAL  I'llOlM-JlTY.     141 

the  ollii-rr  ;  l)iit  the  proof  of  the  seivirc  of  the  jta|)ers  in  the  manner 
j)rcst;ribed  by  llic  court  or  judge  must  ho  by  alliduvil.' 

CHyVlTKll   XX. 

CLAIM  AND  1)I:L1\'1:HV  of  rEll^SONAL  PROrKUTV. 

^  a.V^.  The  action  of  rc|»levin  has  been  superceded  by  the  simpler 
provisions  of  the  (.'ode.  IJy  its  provisions,  the  plaintin'iii  an  action  to 
recover  the  possession  of  personal  property,  may,  at  the  time  of  issuing 
the  sumnions,  or  at  any  time  before  answer,  claim  the  immediate 
delivery  of  such  property,  as  hereinafter  mentioned.'^ 

g  353.  Where  a  delivery  is  claimed,  an  affidavit  must  be  made  by 
the  plaintifT,  or  some  one  on  his  behalf,  showing, 

1.  That  the  plaintiff  is  the  owner  of  the  property  claimed,  (particu- 
larly describing  it,)  or  is  lawfully  entitled  to  the  possession  thereof,  by 
virtue  of  a  special  property  therein,  the  facts  in  respect  to  which  shall 
be  set  forth : 

2.  That  the  property  is  wrongfully  detained  by  the  defendant : 

3.  The  alleged  cause  of  the  detention  thereof,  according  to  his  best 
knowledge,  information  and  belief: 

•1.  That  the  same  has  not  been  taken  for  a  tftx,  assessment  or  fine, 
pursuant  to  a  statute ;  or  seized  under  an  execution  or  attachment 
against  the  property  of  the  plaintiff;  or  if  so  seized,  that  it  is,  by  statute, 
exempt  from  such  seizure  :  and 

5.  The  actual  value  of  the  property.' 

§  354.  The  plaintiff  or  his  attorney  may,  thereupon,  by  an  indorse- 
ment in  writing,  upon  the  affidavit,  require  the  sheriff  of  the  county 
where  the  property  claimed  may  be,  to  take  the  same  from  the  defendant, 
and  deliver  it  to  the  plaintiff/ 

g  355.  The  plaintitV  shall  also  cause  to  be  executed  an  undertaking 
by  one  or  more  sufficient  sureties,  (of  which  the  plaintiff  cannot  be 
one,^)  to  the  effect  that  they  are  bound  in  double  the  value  of  tlie 
propertv  as  slated  in  tlie  affidavit  for  the  prosecution  (ff  the  actipn,  for 
the  return  of  the  property  to  the  defendant,  if  return  thereof  be 
adjudged,  and  for  the  payment  to  him  of  such  sum  as  may,  for  any 
cause  be  recovered  against  the  plaintiff.*  The  sheriff  should,  in  all 
cases  require  the  sureties  to  any  undertaking  he  is  required  to  receive 
or  approve  in  these  proceedings,  whether  given  by  the  plaintiff  or  the 
defendant,  to  make  the  usual  affidavit  of  justification,  and  acknowledge 
the  undertaking  in  the  same  manner  as  deeds  of  real  estate  are 
acknowledged,  before  he  receives  or  approves  the  same.^ 

'  Laws  1853,  ch.  511,  ^1.         ^  Code,  (\207.  s  Code,  209. 

Ante,  ^289.  *  Code,  ^208.  7  Rules  Sup.  Court,  71. 

a  Code,  <J206.  5  2  Code,  Rep.  60. 


M2    CL  \1M  AND  1)I:LIVI:KV  of  TERSONAL  PKOl'llliTV. 

^  :{.")(».  Smh  aflulavit  and  iiitiorsomcnl  thereon,  wiilj  tlu*  undertaking, 
together  with  copies  of  each  of  such  pa|)er.s,  shall  he  <lclivered  to  the 
sherilV.  If  he  is  of  the  opinion  that  the  sureties  named  in  the  nndcr- 
takini;  are  suflicient.  he  shall  indorse  his  approval  thereid'  upon  such 
undertaking,  and  shall  niakr  thr  copy  thereof  <-orrespond  thereto.  The 
sherilVhas  no  right  to  dispense  with  the  undertaking.' 

<3  Ji.">7.  On  receiving  such  papers,  and  after  he  has  so  a|iprove(l  of  the 
sureties  in  the  undertaking,  the  sherilV  shall  forthwith  take  the  j)roperty 
descrihed  in  the  alHdavit,  if  it  be  within  his  county,  and  be  in  the  pos- 
session of  thedefendant  or  his  agent.  If  it  has  passed  out  of  the  jtossessioii 
of  the  defendant  or  his  agent,  the  sherilf  will  not  be  justified  in  taking  it. 
If  such  property  or  any  part  thereof  Ijc  concealed  in  a  building  or 
enclosure,  the  ollicer  shall  jtuidicly  dtMuanti  its  delivery  ;  and  if  it  be 
not  delivered,  he  shall  cause  the  building  or  enclosure  to  be  broken 
open,  and  take  the  property  into  his  possession,  and  if  necessary,  he 
may  call  to  his  aid  the  power  of  the  county.^  The  sherifT  shall  also, 
without  delay,  serve  on  the  defendant,  a  coj)y  of  the  allidavit,  notice 
and  undertaking,  by  delivering  the  same  to  him  personally,  if  he  can  be 
found  ;  or  to  his  agent,  from  whose  possession  the  property  is  taken ; 
or  if  neither  can  be  found,  by  leaving  them  at  the  usual  j>lace  of  abode 
of  either  such  agent  or  defendant,  with  some  person  of  suitable  age  and 
discretion.  When  the  sherift'  seizes  such  property  he  shall  keep  it  in 
a  secure  place,  and  retain  it  in  his  custody  until  it  is  determined,  as 
hereinafter  mentioned,  who  is  entitled  to  the  possession  of  the  same.' 

^  358.  The  defendant  may,  within  three  days  after  the  service  of  a 
copy  of  the  allidavit  and  undertaking,  give  notice  to  the  sherilVthat  ho 
excepts  to  the  sufficiency  of  the  .'Nineties.  If  he  fail  to  do  so,  he  shall 
be  deemed  to  have  waived  all  objection  to  them.  When  the  defend- 
ant excepts,  the  sureties  shall  justify  on  notice,  in  like  manner  as  ujxmi 
bail  upon  arrest.*  And  the  slierilf  shall  be  responsible  for  the  sulli- 
<;iency  of  the  sureties  until  the  objection  to  them  is  either  waived  as 
above  mentioned,  or  until  they  shall  justify,  or  new  sureties  shall  be 
substituted  ana  justify.  If  the  dcfend.mt  excepts  to  the  sureties  he 
cannot  reclaim  the  property  as  hereinafter  mentioned." 

^  n.'iO.  At  any  time  before  the  delivery  of  the  prt>perty  to  the 
piaintifl*  the  deleiuhuit  may,  if  he  does  not  except  to  the  sureties  of  the 
plaintilT,  require  the  return  of  the  jcoperty  upon  giving  to  the  sheriff 
a  written  undertaking,  executed  by  two  or  more  sutlicient  siueties,  to 
the  effect  that  they  are  bound  iti  double  the  value  of  the  property,  as 
stated  in  the  allidavit,  for  the  delivery  thereof  to  the  |)laintilf,  if  such 
delivery  be  adjudged,  and  for  the  payment  to  him  (»f  such  sum  as  may 

«  Codo,  <>209.  «  AnU',  (y\r,.  «  Anl<«,  <^:\m. 

18  Wend.  581.  »  Code,  ^fy20Q,  212, 211-216.     »  Code,  ^210. 

1  Code,  Rep.  02. 


CLAIM  AND  DICLIVKIIV  OI-  IMCIISONAF.  IMlOI'llllTV.       143 

for  any  cause,  be  rct'overed  at^aiiist  the  <lefen(laiit.  If  a  return  of  the 
projjerty  be  not  so  r('(|uire(l  witliin  three  days  after  the  takinj;  and 
service  of  notice  to  the  defendant,  it  shall  be  delivered  to  the  jjJaintifT, 
unless  it  be  claimed  by  a  third  person  as  mentioned  in  the  two  hundred 
and  sixteenth  section  of  the  Code.' 

(^  ."U'tO.  The  defendant's  sureties,  upon  a  notice  to  the  plaintill'of  not 
less  than  two  nor  more  than  six  days,  shall  justify  before  a  judge  of  the 
court  or  a  county  judge  in  the  same  manner  as  uj)on  bail  upon  arrest; 
upon  such  justification  the  sheriff  shall  deliver  the  property  to  the 
defentlant.  The  sherifl*shall  be  responsible  for  the  defendant's  sureties 
until  they  justify,  or  until  justification  is  comi)lcted  or  expressly  waived, 
and  may  retain  the  property  until  tliat  time,  but  if  they  or  others  in  their 
])laco,  fail  to  justify  at  the  time  and  place  aj)pointed,  he  shall  deliver  the 
property  to  the  plaintiff.^  The  qualifications  of  sureties  and  their  justifi- 
catioH'shall  be  as  are  prescribed  by  sections  one  hundred  and  ninety- 
four  and  one  hundred  and  ninety-five  of  the  Code,  in  respect  to  bail 
upon  an  order  of  arrest.^ 

^  301.  If  the  property  taken  be  claimed  by  an\  other  person  than 
the  defendant  or  his  agent,  and  such  person  shall  make  affidavit  of  his 
title  thereto,  and  right  to  the  possession  thereof,  stating  the  grounds  of 
such  right  and  title,  and  serve  the  same  upon  the  sheriff',  the  sheriff 
shall  not  be  bound  to  keep  the  property,  or  deliver  it  to  the  plaintiff, 
unless  the  plaintiff  on  demand  of  him  or  his  agent  shall  indemnify  the 
sheriff  against  such  claim,  by  an  undertaking,  executed  by  two  suffi- 
cient sureties,  accompanied  by  their  affidavits,  that  they  are  each  worth 
double  the  value  of  the  property  as  specified  jn  the  affidavit,  and  free- 
holders and  householders  of  the  county.  And  no  claim  to  such  prop- 
erty by  any  other  person  than  the  defendant  or  his  agent,  shall  be  valid 
against  the  sheriff  unless  made  as  aforesaid,  and  notwithstanding  such 
claim,  when  so  made,  lie  may  retain  the  property  a  reasonable  time  to 
demand  such  indemnity.^ 

^  3G2.  The  sherifV  shall  in  all  cases,  unless  the  matter  is  sooner 
adjusted  by  the  parties,  retain  the  property  in  his  possession  until  the 
expiration  of  three  days  from  the  time  of  taking  the  same,  and  the 
service  of  notice  to  the  defendant.  If  at  the  expiration  of  such  three 
days,  neither  the  defendant  nor  any  other  person  has  claimed  a  deliv- 
ery of  such  property,  the  sherifV  shall  deliver  the  same  to  the  plaintiff, 
and  not  before.  And  so  it  shall  be  delivered  to  the  plaintiff,  where  the 
defendant  has  in  due  time  claimed  a  re-delivering  of  the  property,  if 
his  sureties  or  others  in  their  place  fail  to  justify  at  the  time  and  place 
appointed.  But  if  the  defendant's  sureties  have  justified  on  notice  to 
the  plaiiitiff,  or  if  justification  is  expressly  waived,  the  sheriff  shall  then 

>  Post,  ^361.  3  Code,  ^213.  4  Code,  216. 

a  Code,  <)212.  Ante,  ^338. 


Mt  ATTACIIMCNTS. 

retleliver  such  property  to  such  tlofnulant.  When  the  jirojuTlv  is 
claimed  in  duo  lorm  l»y  anoihor  person,  tlie  sherilV  may  retain  it  a 
reasonable  time  to  demantl  indemnity  from  the  plaintilV.  If  such  plain- 
titV  refuse  to  give  such  indemnity,  the  shcrilV  may  release  the  posses- 
sion of  iho  proi>erty.  When  the  plainlilT  or  defendant  is  entitled  to 
the  possession  of  the  property  as  aforesaid,  the  sherilV  shall  deliver  the 
same  to  him  on  receiving  his  fees  for  taking  the  same,  and  his  neces- 
sary expenses  for  keeping  such  property." 

^  an.'J.  The  sheriff  shall  file  the  notice  and  aflldavit,  with  his  pro- 
ceedings thereon,  ^vith  the  clerk  o(  the  court  in  which  the  action  is 
pending,  within  twenty  days  after  taking  the  property  mentioned 
therein.*  And  the  undertakings  given  shall,  after  the  justification  of 
the  sureties,  be  delivered  by  the  sheriff  to  the  parties  respectively  for 
whose  benefit  they  are  taken. ^ 

ClIAPTEU  XXI. 

ATTArilMENTS. 

1.    ATTACHMENTS      AGAINST     FOREIGN     CORPORATION t?,     NON-RESIUENT    OR 
ABSCONDING    OR    CONCEALED    DEFENDANT.-'. 

3  301.  In  an  action  for  the  recovery  of  money  against  a  corporation 
created  ])y  or  uncfer  the  laws  of  any  other  state,  government  or  country, 
or  against  a  defendant  who  is  not  a  resident  of  this  state,  or  against  a 
defendant  who  has  absconded  or  concealed  himself,  the  plaintitl"  at  the 
time  of  is.suing  the  summons,  or  at  any  time  afterwards,  may  have  the 
property  of  such  defendants  attached  in  the  manner  hereinafter  men- 
tioned, as  a  security  for  the  satisfaction  of  such  judgment  as  the  plaintiff 
may  recover.* 

g  3(55.  The  warrant  of  attachment  may  be  obtained  from  a  judge  of 
the  court  in  which  the  action  is  brought,  or  from  a  county  judge.*  The 
warrant  of  the  judge  alone  is  sufficient  ;  it  does  not  require  formal  teste, 
signature  of  clerk,  or  seal,  and  no  return  day  need  be  inserted,  but  it 
should  b";u-  the  signature  of  the  attorney.'  The  warrant  shall  be 
directed  to  the  sherilfof  any  county  in  which  properly  of  such  defendant 
may  be,  and  shall  re<|uire  liiin  to  :ill:icii  and  safely  keep  all  the  property 
of  such  defembint  within  his  county,  or  so  much  thereof  as  maybe 
bufficienl  to  satisfy  the  i)laintiirs  demand,  together  with  costs  and 
expenses  ;  the  amount  of  whic-h  must  be  stated  in  conformity  with  the 
complaint,  to-jfther  with  costs  and  expenses.  Such  warrants  may  be 
issued  at  the  same  time  to  the  sherill's  of  ditlcient  counties." 

,  (.^.-1-.  •■-■•' 1   -212  216,216.     «ro«lc,  <;227.  •  12  H.irb.  287. 

« (  •  Code,  (228.  '  Code,  V^31. 

»(■■■. 


ATTACIIMlON'l'rf.  145 

;5  ;{()(!.  On  rereivini;  llie  warrant,  tlio  slierilVsliould  mark  tlu-rcon  llx- 
time  when  llie  same  was  delivered  t<>  liiin  lor  execution  ;  and  he  is 
required  to  proceed  thereon  in  ail  respects  in  the  manner  retiuired  by 
law  in  the  case  of  attachinenls  against  absent  debtors.' 

§  :J()7.  lie  shall  immediately  attach  so  much  as  will  be  necessary  to 
satisfy  the  plaintilV's  claim,  of  the  real  estate  and  personal  estate  of  the 
debtor,  including  money,  bank  notes,  except  articles  exempt  from 
execution  ;  and  shall  take  into  his  custody  all  books  of  account, 
vouchers  and  papers  relating  to  the  property,  debts,  credits  and  eflects 
of  such  debtor,  together  with  all  evidences  of  his  title  to  real  estate.'^ 
lie  shall  also  attach  any  equitable  interest  that  the  defendant  may  have 
in  land.'  Also  the  rights  or  shares  which  such  defendant  may  have  in 
the  stock  of  any  association  or  corporation,  together  with  the  interest 
or  profits  thereon.*  But  the  jiroperty  of  the  defendant,  owned  by  iiini 
as  a  partner  with  another  is  not  liable  to  be  attached  upon  a  warrant 
against  him  alonc.^ 

^  308.  The  attachment  is  not  a  lien  upon  property,  either  real  or 
personal,  until  such  property  is  levied  on  under  it.  When  an  attach- 
ment therefore  is  received  by  the  sheriff,  lie  should  be  certain  tf> 
attach  sudicient  to  pay  the  debt  and  costs,  if  the  defendant  has  so  much 
within  the  county,  and  if  lie  I'ails  to  do  so,  where  he  knows  that  the 
defendant  has  other  property  than  that  attached,  and  the  balance  is 
afterwards  seized  under  other  process,  he  may  become  liable  to  the 
plaintiirfor  any  deficiency.* 

g  309.  In  order  to  attach  the  real  estate  of  a  defendant,  it  will  not 
be  necessary  that  the  sheriff  should  go  on  to  the  land,  or  see  it.  It  will 
be  sufficient  if  he  has  a  description  of  it,  and  he  indorses  it  upon  his 
attachment,  and  in  his  inventory.  But  where  the  properly  is  personal 
property,  the  sherilTmust  attach  or  seize  it  in  the  same  manner  as  on 
a  levy  on  personal  property  under  an  execution,  and  he  has  the  same 
power  and  authority  in  attaching  any  such  property,  as  in  making  a 
levy.' 

^  370.  It  shall  be  lawful  for  the  owners  or  masters  of  any  ship  oi 
vessel  on  board  of  which  the  goods  of  any  non-resident,  concealed  or 
absconding  debtor  shall  have  been  shipped  in  good  faith,  for  the  purpose 
of  transportation,  without  reshipment  or  transhipment  in  this  state,  to 
any  port  or  place  out  of  this  state,  to  transport  and  deliver  such  goods 
according  to  their  destination,  notwithstanding  the  issuing  of  any 
attachment  against  such  debtor,  unless  the  attaching  creditor,  his  agent 

»  Code,  ^232.  3  i  Paige,  520.                         «  8  Uow,  Pr.  R.  77. 

2  R.  S.  3,  ^1,  &c.  *  Code,  ^'lU.                            '<  7  IIuw.  Pr.  R.  370. 

Id.  18G,  ^1,  &c.,  4th  cd.  «  7  How.  Pr.  R.  90,  229,  380.      8  How.  Pr.  E.  77. 

2  2R.S.  4,^)7.  4  Com.  513. 

Id.  188,  \)7,  4th  ed.  1  Durcr,  1. 


Code,  ^232. 


20 


lU'i  ATTACIIMICNTS. 

or  ottornrv.  shall  exe«'ule  n  bond  willi  sulliricnt  sureties  to  any  <»i"  I'ither 
of  the  owners  or  miislers  of  the  vessel  on  l»)ar(l  <'t  which  su<-h  goods 
shall  be  ship|H'<l,  con(lilit>ne(l  1<»  |»ay  surh  owner  or  master  all  exjienses, 
damages  and  «!harges  which  may  he  incurred  hy  such  owners  or 
master,  or  to  which  they  may  be  subjected  for  unlading  said  goods 
from  said  vessel,  and  for  all  necessary  detention  of  said  vessel  for  thai 
purfxjse.  Bui  such  bond  shall  not  be  necessary  where  such  owner  or 
master,  either  before  or  at  the  lime  of  the  shipment  of  the  goods  shall 
have  received  actual  information  of  the  issuing  of  such  attachment ;  nor 
where  the  owner  or  master  of  any  vessel  have  in  anywise  connived  at, 
or  been  privy  to  the  shii»menl  of  such  goods  for  the  purpose  of  screen- 
ing them  from  legal  process,  or  for  the  purpose  of  hindering,  delaying 
or  defrauding  creditors.' 

^;ni.  The  execution  t)f  the  attachment  upon  any  rights,  shares, 
interest  or  profits  in  any  slock  of  any  association  or  corporation,  or  any 
debts  due  to  the  defendant,  or  other  property  incapable  of  manual 
delivering  to  the  sherilf,  shall  be  made  by  leaving  a  certified  copy  of 
the  warrant  of  attachment  with  the  ])residenl  or  other  head  of  the 
association,  or  corpoi'alion,  or  the  secretary,  cashier  or  managing  agenl 
thereof,  or  with  the  debtor  or  individual  holding  such  property,  with  a 
nolice,  showing  the  ])roperty  levied  on.  Whenever  the  sheriff  shall, 
with  a  warrant  of  attachment,  or  execution  against  the  defendant,  apj)ly 
to  such  ollicer,  debtor  or  individual  for  the  purpose  of  attaching,  or 
levving  upon  such  properly,  suc^h  olficer,  debtor  or  individual  shall 
furnish  him  with  a  certificate  under  his  hand,  designating  the  number 
of  rights  or  shares  of  the  defendant  in  the  stock  of  such  association  or 
corj)oralion,  with  any  dividend,  or  any  incumbrance  thereon,  or  the 
amount  and  descrijttion  of  the  projierty  held  by  such  association,  cor- 
jwration  or  individual,  for  the  benefit  of,  or  debt  owing  to  the  defendant. 
If  such  ofinrer,  debtor  or  individual  refuse  to  do  so,  he  may  be  required 
by  the  court  or  judge  to  attend  before  him,  and  be  examined  on  oath, 
concerning  the  same,  and  obedience  to  such  orders  may  be  enforced 
by  attachment. '■' 

5  372.  The  sheriflT  shall,  immediately  on  making  such  seizure,  with 
the  assistance  of  tw(»  disinterested  freeh<jlders.  make  a  just  and  true 
inveiitorv  of  all  the  pro])erty  so  seized,  and  of  the  l)ooks,  vouchers  and 
papers  taken  into  his  custody,  stating  therein  the  estin)ated  value  of 
ihc  '  '.'8  of  personal  properly,  anil  enumerating  such  of  them 

as  ■  :  which  inventory,  after  being  signed  by  the  sherifi'  and 

'  i:  u  }^  i^"'.'  1  •.  I »  »'!' ' ■'  • '  ■  ■'.  230. 

L»w»  IMl',  cU.  212,  %l.  2.  .Ii.  lii-  v'J. 


i  Uill,  3U. 


"  oy.^i. 


ATTACHMENTS.  117 

appraisers,  shall  witliin  ten  days  after  such  seizure,  bo  relurncd  to  the 
oflicer  who  issued  the  warrant.' 

j^  373.  \i'  any  of  the  projierty  so  seized,  other  than  vessels,  he  perisli- 
able,  the  sherill'  shall  sell  the  same  at  public  auction,  under  an  order 
of  the  ollicer  who  issued  the  warrant,  and  shall  retain  in  his  hands  the 
proceeds  of  sueJi  sale,  after  deducting  his  expenses,  to  be  allowed  by 
the  ollicer  ;  whi(  h  proceeds  shall  be  disjwsed  of  in  the  same  manner 
as  the  i)roperty  so  sold  would  have  been,  if  it  had  remained  unsold.' 
If  tlM3  i)roperty  attached  be  a  vessel,  or  a  share  or  interest  therein,  the 
ofljcer  issuing  the  attachment  may,  upon  the  terms  mentioned  and  pre- 
scribed in  the  statute,  order  it  to  be  delivered  up  by  the  sheriff;  or  he 
may  order  it  to  be  sold  by  the  sheriff  making  the  seizure,  as  in  the 
case  of  perishable  property.  And  whenever  a  sale  of  perishable 
property,  or  of  a  vessel,  or  share  of  a  vessel,  shall  be  ordered  by  any 
oilicer  in  the  cases  mentioned,  he  shall  in  such  order,  prescribe  the 
time,  place  and  notice  of  such  sale,  and  how  the  same  shall  be  pub- 
lished.^ 

,\S  37  i.  If  any  goods  or  ellects,  seized  as  the  property  of  the  debtor, 
other  than  vessels,  shall  be  claimed  by,  or  in  behalf  of  any  other  per- 
son as  his  property,  the  sheriff  shall  summon  and  swear  a  jury  to  try 
the  validity  of  such  claim,  in  the  same  manner  and  with  the  like  effect 
as  in  case  of  seizure  under  execution.  If,  by  their  inquisition,  the  jury 
find  the  property  of  the  goods  and  effects  so  seized,  to  be  in  the  person 
so  claiming  them,  the  sheriff  shall  forthwith  deliver  them  to  the  claim- 
ant or  his  agent ;  unless  the  attaching  creditor  shall,  by  bond  with 
suHicient  sureties,  indemnify  the  sheriff  for  the  detention  of  such  n-oods 
and  effects.  In  case  of  such  indemnity,  the  sheriff  shall  detain  such 
goods  and  effects  to  be  disposed  of  as  hereinafter  directed.  And  not- 
withstanding such  finding,  the  sheriff  may  refuse  to  deliver  the  prop- 
erty to  the  claimant,  although  no  bond  is  delivered.  This,  however, 
will  be  unadvisable,  and  he  should  in  such  case  require  a  bond  with 
ample  sureties  to  indemnify  him  against  any  action  which  may  be 
brought  against  him  for  seizing  such  goods.  If  the  property  in  such 
goods  be  found  in  the  claimant,  the  costs  and  charges  arising  from 
such  inquisition,  to  be  allowed  by  the  officer  issuing  the  warrant,  shall 
be  paid  by  the  attaching  creditor;  but  if  it  be  found  to  be  in  the  debtor 
then  the  costs  and  charges,  to  be  ascertained  in  the  same  manner,  shall 
be  paid  by  the  claimant.  The  liability  of  the  sheriff  where  he  seizes 
property  which  does  not  belong  to  the  defendant  is  the  same  as 
under  an  execution  in  a  similar  case  ;    and  if  the  plaintiff  directs 

1  2  R.  S.  4,  ^8.  3  2  R.  S.  4,  p,  3  Code,  ^233. 

Id.  188,  (^8,  4th  cd.  Id.  188,  p,  4th  ed.  2  R.  S.  5,  <>(il3-27. 

Code,  ^232.  Code,  ^233.  Id.  188,  i()lo-2d,  4th  ed. 


1-18  atta('[imi:nt^5. 

what  goods  to  atturli.  tlicy  :uv  l)oth  liaMc  as  trc^p.issors.  if  tin-  jnop- 
erty  so  taken  was  not  the  property  of  thr  (irfeiKlanl.' 

^  37r).  The  sherifl'  executing  the  warrant  shall,  subject  to  the  direc- 
tion of  the  court  or  judge  wh«»  issued  the  warrant,  collect  and  receive 
into  his  possession  all  «lehts,  credits  and  cllecls  of  the  defendant.  And 
the  sheriU'may  also  take  legal  proceedings  cither  in  his  own  name  or  in 
The  name  of  such  defendant  as  may  be  necessary  for  that  purpose, 
and  discontinue  the  same  at  such  times  and  on  such  terms  as  the  court 
or  judge  may  direct.*  Or  the  actions  may  be  prosecuted  by  the  plain- 
tiff, or  under  his  direction,  upon  the  delivery  by  him  to  the  sheriff  of 
an  undertaking  executed  by  two  sufhcicnt  sureties,  to  the  eirect  that 
the  plaintiff  will  indemnify  the  sheriff  from  all  damages,  costs  and 
expenses  on  account  thereof,  not  exceeding  two  hundred  and  fifty  dol- 
lars, in  any  one  action.  Such  sureties  shall,  in  all  cases,  when  recpiired 
by  the  sheriff,  justify,  by  making  an  alfidavit  that  each  is  a  householder 
and  worth  double  the  amount  of  the  penalty  of  the  bond,  over  and 
above  all  demands  and  liabilities.^  If  the  plaintiff  does  not  so  desire 
to  prosecute  any  action  for  the  recovery  of  debts  due  to  the  defend- 
ant, it  will  be  the  duty  of  the  sherifl'  to  apply  to  the  court  or  officer, 
for  direction  concerning  the  same.  And  he  should  not,  without  the 
express  order  of  the  court  or  officer,  commence  any  legal  proceedings 
for  the  recovery  of  any  such  indebtedness. 

3  37G.  In  case  judgment  be  entered  for  the  plaintiff  in  such  action, 
the  sheriff  shall  satisfy  the  same  out  of  the  property  attafhed  bv  him, 
if  it  shall  be  sufficient  for  that  purpose : 

1.  liy  paying  over  to  such  plaintiff  the  piocceih  of  all  sales  of 
perishable  property,  and  of  any  vessel  or  share  or  interest  in  any 
vessel,  sold  by  him,  or  of  any  debts  or  credits  collected  by  him,  or  so 
much  as  shall  be  necessary  to  satisfy  such  judgment : 

2.  If  any  balance  remain  due,  and  an  execution  shall  have  issued 
on  such  judgment,  he  shall  proceed  to  sell  under  such  execution,  so 
much  of  the  attached  property,  real  or  personal,  except  as  provided  in 
subdivision  four  of  this  section,  as  may  be  necessary  to  satisfy  the 
balance,  if  enough  for  that  j)urpose  shall  remain  in  his  hands  ;  and  in 
case  of  the  sale  of  any  rii^hts  or  shares  in  the  stock  of  a  corporation 
or  association,  the  sheriff  shall  execute  to  the  purchaser  a  certificate  of 
sale  thereof,  and  the  jiurchaser  shall  lhereu|ion  have  all  the  rights  and 
privileges  in  respect  thereto,  which  were  had  by  such  defendant: 

'.i.   If  any   of   the  attached   proj)erty  of   the  defemlunt   shall    have 

'  C<-  »  Co.l<>,  6232. 

2\  I  -  '  Code,  $238. 

].l    I—       I"  IJ,  Id.  .,|. 
3  Hill,  :iH»i.    r,  I!.ul..  UY.t. 

u   i;  ,ri.    1^'.      ,1  r,.,,,  178, 


A  T'l' AC  11  mi:  NTS.  M!) 

passed  out  of  the  liands  of  the  slicriH' without  having  hccn  sold  or  con- 
verted into  money,  such  sherill'  shall  rci)Ossess  himself  of  the  same, 
and  for  that  puposc  shall  have  all  the  authority  which  he  had  to  seize 
the  same  under  the  attachment,  and  any  person  who  shall  wilfully  con- 
ceal or  withhold  such  property  from  the  siierilV,  shall  be  liable  to  double 
(Iama^j;es  at  the  suit  of  the  party  injured  : 

4.  Until  the  judtrment  against  the  defendant  shall  be  paid,  the  sherifT 
may  proceed  to  collect  the  notes  and  other  evidences  of  debt,  and  the 
debts  that  may  have  been  seized  or  attached  under  the  warrant  of 
attachment,  and  to  prosecute  any  bond  he  may  have  taken  in  the  course 
of  such  proceedings,  and  ai)ply  liie  proceeds  thereof  to  the  payment 
of  the  judgment. 

"When  the  judgment  and  all  costs  of  the  proceedings  shall  have  been 
paid,  the  sheriff,  upon  reasonable  demand,  shall  deliver  over  to  the 
defendant  the  residue  of  the  attached  property  or  the  proceeds 
thereof.'  * 

g;  377.  If  the  foreign  corporation,  or  absent,  or  absconding,  or  con- 
cealed defendant,  recover  judgment  against  the  plaintilTinsuch  action, 
any  bond  taken  by  the  sherifl',  except  such  as  are  taken  by  him  from 
the  plaintitl'as  an  indemnity  for  the  costs  of  any  action  under  the  pro- 
visions of  section  two  hundred  and  thirty-eight  of  the  Code,  all  the 
proceeds  of  sales  and  moneys  collected  by  him,  and  all  the  property 
attached  remaining  in  his  hands,  shall  be  delivered  to  the  defendant  or 
his  agent,  on  request,  and  the  warrant  shall  be  discharged  and  the 
property  released  therefrom. - 

g  378-.  Whenever  the  defendant  shall  have  appeared  in  such  action, 
he  may  apply  to  the  officer  who  issued  the  attachment,  or  to  the  court 
for  an  order  to  discharge  the  same,  and  if  the  same  be  granted,  all  the 
proceeds  of  sales  and  moneys  collected  by  him,  and  all  the  property 
attached  remaining  in  his  hands,  shall  be  delivered  or  paid  by  him  to 
the  defendant  or  his  agent,  and  released  from  the  attachment.^ 

g  379.  When  the  warrant  shall  be  fully  executed  or  discharged,  the 
sherifl'  shall  return  the  same  with  his  proceedings  thereon,  to  the  court 
in  which  the  action  is  brought.* 

2.     ATTACHMENTS      AGAINST     ABSCONDING,    CONCEALEn     OR     NON-RESIDENT 

DEUTOaS. 

^  380.  The  warrant  of  attachment  in  ]>roceedings  under  the  pro. 
visions  of  the  Revised  Statute^  may  be  issued  by  justices  of  the  supreme 
court,  county  judges,  recorders  of  cities ;  and  if  in  the  city  of  Sche- 
nectady, by  the  mayor  thereof.^     Such  warrant  may  be  issued  to  the 

1  Code,  <^237.  3  Code,  ^240.  s  2  R.  S.  35,  ^)1. 

8  Code,  ^239.  *  Code,  ^242.  Id.  214,  <>!,  4th  ed. 


150  ATTACHMENTS. 

sherilVof  every  roiinty  in  \Nhi<*li  any  luoperly  of  the  defendant  may  l)e.' 
And  under  it  the  slieriirshall  attach  ail  the  estate,  real  and  personal,  of  the 
debtor,  except  sueh  aiiicles  as  are  exempt  by  law  from  execution,  with  all 
btH)ks  of  account,  voucIum*s  and  pajtcrs  relatincj  thereto,  and  not  sufiii'icnt 
merely,  to  satisfy  the  plainlitf.  as  in  similar  cases  under  the  provisions 
of  the  Code.'  And  he  shall  take  ])ossession  of  the  same,  and  make  and 
return  an  inventory  thereof,  in  the  manner  already  pointed  out  ;^  and 
he  may,  under  the  tlircction  of  Uic  oHi«*er,  collect,  receive  and  take  into 
his  jossession  all  debts,  credits  and  cH'ects  of  such  debtor,  and  connnence 
such  stiits  and  take  such  legal  procecdint^s  in  the  name  of  the  debtor, 
as  may  be  necessary  for  that  purpose.*  And  so  if  the  jiroperty  be 
perishable,  or  consist  of  vessels,  or  be  claimed  by  another,  or  be  shijiped 
on  board  a  vessel,  to  any  port  or  ])lace  out  of  this  state,  the  same  j)ro- 
ceedings  shall  be  had  as  in  similar  cases  under  the  ]»rovisions  of  the 
Code.*  If,  after  the  issuing  of  any  warrant  of  attachment  against  any 
debtor,  any  other  warrant  shall  be  issued  j)ursiKmt  to  the  foregoing 
provisions,  and  shall  be  levied  ujion  any  i)ropcrty  of  such  debtor,  such 
subsequent  warrant  and  seizure  shall  be  deemed  to  be  a  part  of  the 
proceedings  upon  the  first  ajiplication,  in  the  same  manner  as  if  such 
subsequent  warrant  had  been  issued  by  theollicer  who  granted  the  first 
warrant.  And  the  olficer  who  issued  the  first  warrant  shall,  on  the 
application  of  any  creditor,  subscribe  and  deliver  to  him  a  notice  in 
writing,  directed  to  the  sherill' having  such  subsequent  warrant,  of  the 
fact  of  a  j»rior  warrant  having  issued;  and  u|H»n  such  notice  being 
served  upon  such  sherilF,  he  shall  return  to  such  olficer  an  inventory  of 
the  property  sci/.ed  by  him,  under  such  subse(]Uent  warrant,  with  all 
his  proceedings  thereon,  in  the  same  manner  as  if  the  same  had  been 
issued  by  such  oflicer ;  and  all  proceedings  on  the  subsequent  warrant 
shall  be  conducted  in  all  resjiects,  as  if  the  same  ha<l  been  issued  by 
the  ulTicer  who  issued  the  first  warrant."  Ujton  the  apjtojntment  of 
trustees  being  made,  every  sherilV  to  whom  any  warrant  against  the 
estate  of  such  debtor  may  have  been  issued,  shall  return  the  same,  with 
his  pro<-eedings  thereon,  to  the  ollicer  who  issued  the  same,  or  to  the 
officer  who  issued  the  first  warrant  against  such  debtor,  in  case  war- 
rants hhall  have  been  issued  by  several  ollicers  ;  and  such  olficer  shall 
cause  the  same  to  be  filed  within  thirty  days  thereafter,  in  the  ollice 
of  a  clerk  of  the  supreme  court.^  And  such  sherill'  maybe  compelled 
to  return  such  warrant,  or  the  inventory  recjuired  to  be  taken  by  him, 

"  2  R.  8.  4,  (iC^.  «  KwW,  <)37r).  «  2  R.  8.  9,  <)C3fl,  -lO. 

M  1--  ...  jfi.  ..I  ■•  n  <  i  '■'■-  ^  i.i  !■•'  ..  'I  cj, . nil «•(!. 

•  2  1-  i  . 

M  ,    .  .■,   •   I  .:  l:  I  ;    '  lih  ..-d. 

Alil«;,  yi*ii.  M.  l''",  */.«,  «Sci-.,  Jill  ril. 

» Anlc,  <>a72.  AuU',  </yiH),  liT6,  Mi. 


at'J'aciimj:nts.  151 

!)}•  an  order  ('I'thc  ofliccr  haviiiL:  jurisdiction  over  the  procecjdin^s.and 
by  process  of  attadmient  lor  disohedienco  thereof,  on  the  a|)|ihcation 
of  any  creditor,  or  id"  th(;  dehtor,  and  on  i)roof  of  the  neglect  of  the 
sheriir.' 

;{.     ATTACH  MKNTrt    A(;AIN.ST    I'OKKKiN    CORI'OIIATIONS. 

§.'381.  Tlie  warrant  of  attachment  against  a  foreign  corporation, 
under  the  i)rovisions  of  the  Revised  Statutes,  may  be  allowed  by  the 
supreme  court,  the  superior  court  of  the  city  of  New  York,  and  by  the 
court  of  common  pleas  in  and  for  the  city  and  county  of  New  York, 
or  by  any  judge  thereof  in  vacation,  and  by  any  officer  authorized  to 
perform  the  duties  of  such  judge  at  chambers.'^  But  it  cannot  be 
allowed  by  any  such  judge  or  officer  at  chambers,  during  the  sitting  of 
the  court.^ 

§  382.  The  sheriff*  to  whom  such  attachment  shall  be  directed  and 
delivered,  shall  proceed  thereon  in  all  respects  in  the  manner  prescribed 
by  law,  in  case  of  attachments  against  absent  debtors,*  and  shall  make 
and  return  an  inventory,  and  shall  keep  the  property  seized  by  him,  or 
the  jMoceeds  of  such  as  shall  have  been  sold,  to  answer  any  judgment 
which  may  be  obtained  in  such  suit,  and  shall,  under  the  direction  of 
the  officer  issuing  such  attachment,  collect,  receive  and  take  into  his 
possession  all  debts,  credits  and  effects  of  such  debtor,  and  commence 
such  suits  and  take  such  legal  proceedings,  either  in  his  own  name,  or 
in  the  name  of  such  foreign  corporation,  as  may  be  necessary  for  that 
))urpose,  and  discontinue  the  same  at  such  time  and  on  such  terms  as 
the  said  officer  may  direct.^ 

§  383.  The  suits  authorized  to  be  brought  by  or  in  the  name  of  the 
sheriff'  may  be  prosecuted  by  the  attaching  creditor,  or  party  benefi- 
cially interested  in  the  attachment,  by  an  attorney  or  solicitor  to  be 
employed  by  him,  and  at  his  costs  and  charges,  upon  delivering  to  the 
said  sheriff*  a  bond  in  the  ])enalty  of  five  hundred  dollars,  with  two 
sureties,  to  be  conditioned  to  indemnify  and  save  the  said  sheriff' 
harmless  from  all  damages,  costs  and  expenses  of  the  said  suit.  The 
said  sureties  shall  in  all  cases  wherein  it  shall  be  required  by  the  sheriff*, 
justify  as  good  and  sufficient  sureties,  by  making  an  affidavit  that  each 
of  them  is  ahouseiiolder,  worth  double  the  amount  of  the  penalty  of  the 
said  bond,  over  and  above  all  demantls  and  liabilities,  which  justification 
shall  be  made  before  any  officer  authorized  to  take  the  justification  of 
bail  in  the  court  out  of  which  said  attachment  was  issued,  upon  at  least 
one  day's  notice  in  writing,  to  such  sheriff*.* 

1  2R.  S.  13,  (>66.  <Anfc,  <)380.  s  2  R.  S.  703,  <j33,  4th  cd. 

Id.  196.  ^)6'J,  4th  cd.  s  2  R.  S.  460,  <)21.  Laws  1846,  ch.  234,  ^2. 

2  2  R.  S.  45U,  ^V)15,  16.  Id.  700,  <>!'.»,  4th  cd. 

Id.  6>J7,  %V3,  14,  4th  cd.        Laws  1840,  ch.  364,  ^2. 

3  3  Hill,  452. 


152  A'rTACMMHN'rS. 

,)  :{,sl.  The  rijjhts  or  shares  wliit-h  any  foreign  corporation  may  have 
or  own  in  tlie  slock  of  any  bank,  banking  association,  insuran«e  com- 
pany or  other  conjpany  or  ••or|Hirali«>n,  together  with  the  interest,  rentji 
and  profits  ilue  and  growing  due  thereon,  and  all  trust  pr<>|.eriy,  real  or 
personal,  funds,  <leposits,  moneys  or  credits  held  by  or  due  fr.mj  any 
bank,  insurance  company,  or  other  company  or  corpnratit»n  or  individual 
in  this  state,  for  and  in  behalf  or  to  such  foreign  corporation,  shall  be 
liable  to  be  atta<-hed  in  actions  at  law,  and  levied  upon  and  sold  to 
satisfy  any  judgment  and  execution.' 

g;  38r>.  The  execution  of  the  attachment  uiiun  any  such  rights  or 
shares,  or  trust  projjerly,  funds,  deposits,  moneys  or  credits,  shall  be 
made  by  leaving  a  true  and  attested  cojiy  of  the  writ,  by  the  oflicer 
servini?  the  same,  w  ith  his  in-ojter  indorsement  thereon,  with  the  cashier 
of  such  bank,  or  with  the  sec-retary  or  clerk  of  such  insurance  company  or 
other  comi)any  or  corporation, or  with  such  individual  holding  such  trust 
property,  funds,  deposits,  moneys  or  credits  and  such  rights  or  shares, 
tofretherwith  the  interest,  rents  and  profits,  and  such  trust  funds,  deposits, 
moneys  or  credits,  shall  be  holden  to  resi)ond  to  the  judgment  which 
may  be  recovered  in  such  action,  or  to  satisfy  such  execution.* 

<S  38G.  Whenever  a  sherilf  shall,  with  a  writ  of  attachment  or  exe- 
cution against  a  foreign  corporation,  apply  to  such  cashier,  secretary, 
or  clerk,  or  to  such  individual  for  the  purpose  of  so  attaching  or 
levying  upon  such  rights  or  shares,  or  such  trust  })roperty,  funds,  de- 
posits, moneys  or  credits,  the  cashier,  secretary,  or  clerk,  or  individual, 
shall  furnish  him  with  a  certificate  under  his  hand,  in  his  official  capacity, 
if  he  be  an  oiUccr,  designating  the  number  of  rights  or  shares  such 
foreign  corporation  holds  in  the  stock  of  such  bank,  company  or  corpo- 
ration, with  the  incumbrances  thereon,  if  any  there  be,  and  the  amount 
of  the  dividend  due  thereon,  or  the  amount  and  description  of  such 
trust  property,  funds,  dejMJsits,  moneys  or  credits,  held  by  such  company, 
corporation,  or  individual,  for  the  benefit  of  such  loreign  corpora- 
tion.* 

;5  387.  In  case  any  cashier,  secretary,  clerk,  or  individual,  upon 
whom  any  sherilT  shall  serve  any  such  attachment  or  execution,  shall 
refuse  to  furnish  him  with  the  certificate  rc<piired,  then  it  shall  bo 
lawful  for  the  jilaintilf  in  such  attachment,  or  execution  to  rcipiire  the 
examination  of  such  secretary,  clerk,  or  individual,  before  any  officer 
of    '  irt  out  of  which  said  attachment   or  execution  shall   have 

\u  \.*     Such  officer  may  issue   his  warrant  commanding  any 

sheriir  or  constable  to  cause  such  ollicer  or  individual  to  be  brought 

>  2  R.  8.  700,  ^,  4lh  c  :.       »  2  U.  8.  701,  ^22,  4th  oJ.       <  2  U.  8.  708,  ^31,  -Itli  cd. 
'■'""■'     '  '•    •  1.  Lawi  1M2,  ch.  iy7,  ^8.  I  '"  '  '^'^  <»i.  68,  ^1- 


AT'J'ACIIMHNTS.  153 

liefuie  him  at  such  time  anrl  place  as  he  shall  appoint,  for  the  purpose 
of  being  examined,  and  if  he  shall  refuse  to  be  sworn,  or  to  answer 
satisfactorily  all  lawful  questions  put  to  him,  not  havin;,'  a  reasonable 
objection  thereto,  to  be  allowed  by  such  olliccr,  the  said  olliccr  shall, 
by  warrant  commit  him  U>  prison,  there  to  remain  without  bail,  until 
he  shall  subiriit  to  be  sworn,  or  to  answer  as  retpiired  ;  and  he  shall 
be  detained  in  jail,  in  the  manner  prescribed  for  the  confinement  of  an 
insolvent  or  other  person,  who  refuses  to  answer  touching  the  conceal- 
ment or  embezzlement  of  pro])crty.' 

^  388.  If  any  property  so  seized  shall  be  perishable,  or  if  any  pari 
of  it  be  claimed  by  any  other  person  than  such  corporation,  or  if  anv 
jmrt  of  it  consist  of  n  vessel  belonging  to  any  porter  place  in  this  state, 
or  any  of  the  United  States,  or  of  any  foreign  vessel,  or  of  any  share 
or  interest  in  any  vessel,  the  same  proceedings  shall  be  had  in  all  res- 
pects as  are  provided  by  law  upon  attachments  against  absent  debtors.* 

§  389.  Any  bond  required  in  any  such  ca.se  to  be  given  by  a  peti- 
tioning creditor,  may  be  given  by  the  plaintifl' in  the  suit;  and  anv 
bond  required  to  be  given  to  the  sherifl*  serving  such  attachment,  shall 
be  held  for  the  benefit  of  the  plaintilT  in  such  suit.  And  if  the  plaintifl' 
in  such  action  be  nonsuited,  or  discontinue  the  same,  or  jud"-ment  for 
any  cause  pass  against  him,  every  such  bond  taken  by  the  sheriff,  all 
the  proceeds  of  such  sales,  and  all  the  property  of  such  corporation 
remaining  in  his  hands,  shall  be  delivered  by  such  sherifl^to  the  defend- 
ants or  their  agents,  in  the  same  manner  and  upon  the  same  terms,  as 
are  prescribed  in  the  case  of  an  attachment  against  an  absent  debtor 
being  discharged  ;  and  in  case  of  the  failure  of  such  corporation  to 
comply  with  such  terms,  the  sheriff  shall  proceed  in  like  manner,  as 
directed  in  case  of  an  absent  debtor.^ 

§  390.  In  case  judgment  be  entered  for  the  plaintiff  in  any  such  suit, 
the  lien  of  such  judgment  dates  from  the  time  the  jiropertv  was 
attached  ;  and  when  the  execution  is  issued,  it  must  be  directed  to,  and 
be  executed  by  the  sheriff  who  served  the  attachment,  notwithstanding 
he  may  have  since  gone  out  of  office.^  And  such  sheriff  shall  satisfy 
such  judgment  out  of  the  property  attached  by  him.  if  it  sliall  be  suffi- 
cient for  that  purpose  : 

1.  By  paying  over  to  such  plaintiff  the  proceeds  of  all  sales  of  per- 
ishable property  and  of  any  vessel,  or  share  or  interest  in  anv  vessel 
sold  by  him,  or  so  much  as  shall  be  necessary  to  satisfy  such  judfrment : 

ii.  If  any  balance  remains  due,  and   an  execution  shall  have  been 

1  Ante,  <J252.  2  2  R.  S.  4G0,  ^22.  s  Ante,  ^380. 

2  R.  S.  703, 1)35,  4th  ed.  Id.  702,  <y2o,  4th  ed.  2  R.  S.  461 ,  f)$23  25 

Laws  1848,  ch.  53,  «^2.  Ante,  380.  Id.  702,  ()^2G,  27,  4t'h  ed 

•'  R.  S.  44,  ^^13-16.  .  4  6  Hill,  362 


Id.  222,  ^^15-18,  4th  ed. 


21 


154  a'itacii.mi:nts. 

issued  on  such  jtuL'mcnl.  he  shall  ppM-erd  to  sell  uiuln-  Mich  execution 
so  unich  ol  the  attacheij  |)ro|>eiiy,  real  or  |u'rson:il,  a-^  may  he  neces- 
sary to  satisfy  such  balance,  if  enough  for  thai  purpose  shall  remain  in 
his  lijuuls  ;  and  in  ••ase  of  the  sale  of  any  rights  or  shares  which  the 
defendant  may  have  or  own  in  the  stock  of  any  l)ank,  hankinp  associ- 
ation, insurance  company,  or  other  company  or  cor|»oraiion,  interest, 
rents,  and  prf»fits  thereon,  or  trust  property,  real  or  personal,  funds, 
dej>osits.  moneys  or  credits,  the  sherilV  shall  execute  to  the  j)urchaser  a 
deed  or  hill  of  sale  thereof,  and  the  purchaser  shall  thercuj>on,  on 
demand,  he  entitled  to  all  such  property,  deposits,  trust  |)ropcrty,  funds, 
moneys,  or  credits,  and  all  such  rii^hts  and  shares  or  stock,  and  shall 
have  all  the  rights  and  privileges  in  respect  thereto,  as  were  possessed 
by  such  foreign  corporation  : 

3.  If  any  of  the  attached  ]>roperty  or  ellects  belonging  to  such 
foreign  corporation,  shall  have  passed  out  of  the  hands  of  such  shcrilV 
by  delivery  or  otherwise,  without  having  been  sold,  such  sherilV  shall 
repossess  himself  of  the  same,  and  for  that  purpose  he  shall  have  all 
the  authority  which  he  had  to  seize  the  same,  under  the  allachment ; 
and  any  person  who  shall  wilfully  conceal,  withhold  or  detain  any  such 
pro|)erty  or  elVects,  from  the  said  sherifl',  shall  be  liable  to  d<nible  dam- 
ages at  the  suit  of  the  parties  interested  and  injured  : 

4.  Until  the  judgment  against  such  foreign  corporation  shall  be  paid, 
such  sherifl' shall  proceed  to  collect  the  notes,  bills,  and  other  evidences 
of  debts  that  may  have  been  seized  undtT  such  attachment  and  to  pros- 
ecute any  bond  which  he  may  have  taken  in  the  course  of  such  pro- 
ceedings and  apply  tlu'  proceeds  thereof  to  the  pavment  <»f  such  judg- 
ment ;  and  when  such  judgment  and  all  costs  of  the  proceedings  have 
been  fully  paid,  the  sherifl',  upon  reasonable  demand,  shall  deliver  over 
to  such  foreign  corporation  all  the  residue  of  such  attached  proi)erty 
or  the  proceeds  thereof:' 

•1.    WAURANi.-^    <i\    iii;m.\mis  .\(.\l^.-^    ^-lll^S. 

3  'J'Jl.  'I'he  warrant  to  enforce  any  lien  upon  any  shi|)  or  ves.sel  for 
any  <iebl  due,  or  for  any  injury  to  another  vessel,  may  be  granted  by 
any  ofliccr  authorized  by  law  to  perform  the  duties  of  a  justice  of  the 
suprenic  court  at  ••hambers,  in  the  county  within  which  such  ship  or 
vessel  shall  then  be,  or  in  the  <'ity  of  New  York,  by  any  justice  <d'  the 
luperior  court  of  law  therein  ;'  such  warrant  shall  be  issued  to  the 
sherifl*  of  such  county,  and  shall  command  him  to  attach,  seize  and  safely 
keep  such  ship  or  vessel,  her  tar-kle,  a|ip:ir«l  and   furniture,  to  answer 

•  2R.  H.701,(/>20,23, -Jlhr«|.     «  lM'    -    '    '      ;•, 
Lawn  1842,  ch.  \\H ,  (^(,1,  i.  I  ;ili  -.l. 

J         ,  ,,.  ,,  jris. 

Lawn  iwal.ch.  818,^^1,  2,  a. 


ATTACHMENTS.  ir).^ 

all  siirh  liens  as  shall  he  estahlished  ai^ainst  her,  arronlin^  to  law ;  and 
to  make  return  of  his  proceeding's  under  such  warrant  to  tho  said 
officer,  within  ten  days  after  such  seizure.  After  one  warrant  has  l)een 
issued,  no  other  warrant  shall  issue  against  the  same  ship  or  vessel, 
unless  the  Hrst  warrant  he  superseded.' 

§  ;}!)'2.  The  sherill'to  whom  any  such  warrant  shall  he  directed  and 
delivered,  shall  forthwith  execute  the  same,  (unless  such  vessel  shall 
have  heen  seized  hy  virtue  of  ])rocess  issuing  fronn  any  court  of  the 
United  States,  having  admiralty  jurisdi(-lion,  if  such  vessel  is  actually 
held  under  such  seizure,)  and  shall  keep  the  ship  or  vessel  and  other 
property  seized  hy  him,  to  he  disposed  of  as  hereinafter  directed.  He 
shall  also,  within  ten  days  after  such  seizure,  make  a  return  to  the 
officer  who  issued  the  warrant,  stating  therein  particularly  his  doings 
in  the  i)remises  ;  and  shall  make  out,  suhscribe  and  annex  thereto,  a 
just  and  true  inventory  of  all  the  ])roperty  so  seized  :  which  inventory 
shall  be  signed  by  him  and  annexed  to  hi.s  return.^ 

^  393.  On  receiving  a  proper  bond  from  the  owners  of  the  vessel, 
the  officer  issuing  the  warrant  may  discharge  the  same;  and  no  farther 
proceedings  against  the  vessel  so  seized,  shall  be  had  under  the  pro- 
visions of  the  statute,  founded  upon  any  demands  included  in  such 
bond.'  The  sherifl'  should  not  permit  the  vessel  to  go  out  of  his 
possession  without  such  order  of  discharge,  else  he  may  be  liable  to  the 
attaching  creditors.* 

^  304.  If  the  warrant  shall  not  have  been  discharged,  the  officer  who 
issued  the  same,  within  one  month  after  the  expiration  of  the  time 
limited  in  the  notice  for  the  owner,  consignee  or  commander  thereof,  or 
some  person  interested  therein,  to  appear  and  discharge  such  warrant, 
shall  issue  his  order  to  the  sheriffi  who  seized  the  vessel  under  such 
warrant,  directing  such  sherift'to  proceed  and  sell  the  vessel  so  seized, 
her  tackle,  apparel  and  furniture,  and  shall  state  in  such  order  the 
amount  necessary  to  be  raised  to  satisfy  such  claims  and  expenses.'  If 
it  shall  appear  to  such  officer  that  the  claims  exhibited  before  him,  and 
the  expenses  of  the  proceedings,  can  he  satisfied  by  a  sale  of  the  tackle, 
apparel  and  furniture  of  such  vessel,  or  of  some  part  thereof,  without 
selliniT  such  vessel,  he  shall  modify  his  order  accordingly.* 

^  3i).').  Within  twenty  days  after  the  service  of  such  order,  the 
shcrilV  sliall  proceed  to  sell  the  vessel  so  seized  by  him,  her  tackle, 
apparel  and  furniture,  or  such  part  thereof  as  shall  be  sufficient  to 
satisfy  the  claims  exhibited,  and  the  expenses  incurred,  upon  the  same 

»  2  R.  S.  494,  %b,  7.  3  2  R.  S  40o,  ^/)12,  13,  14.      «  2  R.  S.  407,  ^21. 

Id.  7:U,  <)^5,  7,  4th  cd.  M.  7;;."),  ^/)12, 13, 14,4th  ed.     Id.  736,  ^21,  4th  cd. 

»  2  R.  S.  4".I4,  (yi.  <  11  Wind.  041. 

Id.  704,  ut),  4th  cd.  s  2  R.  S.  4%,  ^320. 

2  R.  S.  4'JO.  <>43.  Id.  736,  ^20.  4th  od. 

Id.  738,  ^42,  4th  ed. 


156  OV  WRITS  OF  NF.  KXIiAT. 

notice,  in  the  same  niuiiicr,  :«ii<l  in  all  icsj)oct.s  subject  to  the  provisions 
of  law  in  case  of  the  sale  df  personal  property  upon  an  exeoulioii,  and 
the  sheritV  shall  return  to  the  oHiccr  j^ranting  such  order,  his  proceed, 
ings  under  the  same ;  and  the  ])roceeds  of  such  sale  after  deducting 
his  fees  and  ex|>enses  in  seizing,  preserving,  watching  and  selling  such 
vessel,  to  be  allowed  by  such  ollieer,'  shall  be  retained  by  such  sheriff 
in  his  hands,  to  be  distributed  and  jiaid  "  by  him  on  the  order  of  the 
orticer  issuing  such  warrant,  to  the  several  attaching  creditors  entitled 
thereto,  according  to  the  distribution  thereof,  and  the  same  shall  be 
paid  accordingly ;  and  all  mctneys  remaining  in  the  hands  of  such 
sheritf  after  such  payment,  and  after  deducting  his  commissions,  shall 
be  paid  to  the  owner,  agent,  consignee  or  master  of  such  vessel.' 

^  390.  Every  sheriiV  to  whom  a  warrant  may  have  been  delivered, 
may  be  compelled  by  the  ollicer  having  jurisdiction  over  the  proceed- 
ings thereon,  to  return  the  inventory  recpiired  to  be  taken  by  him,  and  to 
j)ay  over  money  in  his  hands,  pursuant  to  any  order  for  that  purpose, 
by  an  order  of  such  officer,  and  by  process  of  attachment  for  disobedi- 
ence thereof,  on  the  application  of  any  creditor.^ 

CHAPTER  XXII. 

OF  WRITS  OF  NE  EXEAT. 

^S  397.  Any  justice  of  the  supreme  court,  or  any  county  judge,  may, 
out  of  court,  allow  writs  of  7ie  exeat  in  sm'ts  and  proceedings  in  the 
supreme  court,  according  to  the  course  and  i)ractice  of  such  court,  in 
such  cases  and  under  such  regulations  as  shall  be  provided  by  law,  or 
by  the  rules  and  regulations  of  such  court  not  inconsistent  with  law.* 

5  3J)8.  The  \vrit  of  7if:  exeat  must  be  directed  to  the  sherilV  of  the 
county,  to  whom  it  is  delivered  for  service,  and  it  shall  be  served  by 
him,  by  arresting  the  defendant  if  he  can  be  found  therein.  The  arrest 
may  be  made  at  the  same  times,  and  in  the  same  places,  and  in  the 
same  manner  as  arrests  upon  an  order  of  arrest  under  the  Code;  and 
the  officer  will  have  the  same  power  to  command  the  assistance  of 
others  as  in  such  cases.* 

,^  3!K).  Upon  arresting  the  defendant,  the  sherilV  may  take  from  him 
a  bond  in  the  jtenally  marked  upon  the  writ,  (which  must  not  be 
enlarged  by  the  shehlf,  for  the  j)enalty  of  the  bond  is  the  amount 
marked  on  the  writ  and  not  double  that  sum)  conditioned  that  the 
defendant  will  not  depart  from,  or  leave  the  state  without  the  jicrmis- 

'2n.  s   '  :  i;        ■         !.:                  •  l  I$.irt».  Cli.  iv.  G64. 

M.  7                      ■  !  II                       li«-(l.                  AuU',  ^^;J20, 4«. 

»2U.  f-                      -•;  J  K   .      ....    ...,,  Uh  r<l. 

Id    7                         1th  c<l.  I,.awH  1H17,  <ti.  470,  ^13. 

^'2H.f^>.  7  How.  I'r.  K.  »tt9. 

Id.  T<ib,  <)6(>,  4Ui  vd.  10  Uarb.  3W. 


OF  WRITS  OF  NIC  lOXICAT.  157 

sion  of  the  court,  in  taking  such  hond,  the  sheriflT  sIiouM  he  cautious 
that  the  sureties  arc  competent,  for  he  is  ansvverahle  for  their  suincieucy, 
under  all  circumstances,  and  the  court  has  nothing  to  do  with  the  acta 
ol'the  sherill"  therein.'  And  if  the  defendant  dejjarts  the  state  pending 
the  suit,  so  that  he  cannot  be  made  amenable  to  the  process  of  the 
court,  or  compelled  to  perform  the  final  decree,  the  court  will,  on  afTi- 
davit,  ordcM"  the  sheriff  to  pay  the  decree  with  interest  and  costs  of 
the  motion.  But  the  court  will  first  give  to  the  sherill'time  to  jiroduce 
the  defendant;  or  if  he  is  unable  to  do  so,  it  will  give  him  time  to  col- 
lect the  amount  of  the  bond  taken  by  him  before  it  compels  him  to  pay 
the  decree.'' 

^  400.  If  the  defendant  on  being  arrested,  on  ne  exeat,  fail  to  give 
such  bail  as  shall  be  satisfactory  to  the  sherifl",  he  must  be  kept  in  cus- 
tody according  to  the  command  of  the  writ,  and  the  sherifl'must  state 
that  fact  in  his  return  thereto.  The  defendant  is  not  entitled  as  of 
course  to  the  limits.^ 

§  401.  The  sureties  of  one  arrested  on  ne  exeat,  may  surrender  him, 
or  he  may  surrender  himself  in  exoneration  of  his  bail.  To  effect  such 
surrender,  two  copies  of  such  bond,  proved  by  the  affidavits  of  the 
officer  to  whom  the  same  was  given,  or  certified  by  the  officer  with 
whom  the  same  shall  have  been  filed,  to  be  true  copies,  shall  be 
produced  before  a  justice  of  the  supreme  court,  before  whom  such 
suit  or  proceeding  is  pending,  and  an  order  of  commitment  shall 
be  made  by  such  officer,  before  whom  said  copies  are  produced,  on  one 
of  such  copies,  and  be  delivered  to  the  officer  who  originally  arrested 
the  party,  whose  duty  it  shall  be  to  receive  such  party  and  hold  him  in 
his  custody,  in  virtue  of  the  original  process  against  him  and  arrest 
thereon,  and  to  obey  the  exigency  of  such  process  in  the  same  manner 
as  if  such  bail  bond  had  not  been  given  ;  and  the  other  of  such  copies 
shall  be  filed  with  the  order  for  the  discharge  of  the  bail,  with  the 
officer  who  issued  the  process,  in  virtue  of  which  such  party  was 
arrested  ;  and  sut^h  order  when  filed,  together  with  an  acknowledg- 
ment of  the  receijjt  of  the  person  by  the  jiroper  officer,  shall  operate 
as  a  discharge  of  the  said  bail  or  sureties  from  all  further  liability.  But 
if  a  suit  has  been  commenced  against  such  bail,  the  said  suit  shall  be 
discharged  on  such  terms  or  conditions  as  shall  be  deemed  just  by  the 
court  in  which  such  suit  was  pending,  on  application  to  such  court  for 
that  purpose  and  not  otherwise.* 

§  402.  The  sherifl',  unless  restrained  by  an  order  of  a  justice  of  the 
supreme  court,  may  by  virtue  of  said  writ,  and  the  arrest  made  thereon, 
release  the  said  party  from  his  custody,  on  his  executing  to  the  officer 

1  1  Barh.  Ch.  Pr.  651,  G5-t.     2  f,  pai^c.  491.  *  2  R.  S.  Gril,yV34,  35,  4th  cd. 

1  Hoir.    "       "    167.  3  1  iJarb.  Ch.  Pr.  654.  Laws  1845,  ch.  ii;31,  V^l,  2. 

10  Barb.  52.  1  Hofl.  Ch.  Pr.  168. 


15S  OF  Till-:  KXICCIITION. 

a  new  bail  bond  with  satisfartory  sureties,  with  the  hkr  pi'nalty  and  con- 
dition as  before.  \N'hen  new  bail  shall  be  ^iven,  and  the  |»arly  dis- 
charged from  custfMly  on  sueh  bail,  the  bonti  shall  bo  of  the  same  form 
and  effect,  and  the  liability  of  the  ollicor  shall  be  the  same  as  upon  an 
original  arrest.' 

(11  AI'TKIi    XXIII. 
OF  Tin;  K.XKCL'TION. 

^5  lO'J.  There  are  several  forms  of  executions  for  enforcing  a  judg- 
ment in  a  civil  action,  which  will  be  mentioned  in  their  order.  Such 
executions  need  not  be  under  seal ;  nor  tested  in  the  name  of  the  chief 
justice  of  the  court  from  which  they  issue,  nor  signed  with  the  name  of 
the  clerk  thereof.''  But  thoy  must  be  .^^ubscribed  by  the  party  issuing 
them,  or  by  his  attorney,  and  be  directed  to  the  sherilT  of  the  county 
to  which  they  are  delivered,  or  to  the  coroner  thereof,  if  the  sheriff  is 
a  party. ^  They  must  intelligibly  refer  to  the  judgment,  stating  the 
court,  the  county  where  the  judgment  roll  or  transcript  is  filed  ;  the 
names  of  the  jiarties,  the  amount  of  the  judgment,  and  if  it  be  for  money, 
the  amount  actually  due  therec»n,  and  the  time  of  docketing  in  the 
clerk's  office  of  the  county  to  which  it  is  issued.  Such  execution  shall 
require  the  officer  substantially,  as  foII<jws : 

1.  If  it  be  against  the  jirojierty  of  the  judgment  debtor,  it  shall  require 
the  officer  to  satisfy  the  judgment  out  of  the  personal  projierty  of  such 
debtor,  and  if  sufllcieMt  personal  j)roperty  cannot  be  found,  out  rtf  the 
real  estate  belonging  to  him  on  the  day  when  the  judgment  was  dock- 
eted in  the  county,  or  at  any  time  thereafter : 

2.  If  it  be  against  real  or  personal  property,  in  the  hands  uf  personal 
rejjresentatives,  heirs,  devisees,  legatees,  tenants  of  real  i)ropertv,  or 
trustees,  it  shall  require  the  ollicer  to  satisfy  the  judgment  out  of  such 
property : 

3.  If  it  be  again.st  the  jierson  of  the  judgment  debtor,  it  shall  re(juire 
the  officer  to  arrest  such  debtor  and  commit  him  to  the  jail  of  the 
county,  until  he  shall  ]»ay  the  judgment,  or  be  discharged  according 
to  law : 

•i.  If  it  be  for  (he  delivery  of  the  possession  ol*  real  or  personal 
pro[»erty,  it  shall  rc(piire  the  officer  to  deliver  the  jiossession  of  the 
same,  particularly  describing  it,  to  the  party  entitled  thereto,  and  may 
al  the  hame  lime  require  the  officer  to  satisfy  any  costs,  damages  or 
rents  and  profits,  recovered  by  the  same  judgment  out  of  the  personal 
pro|>erty  of  the  party  .-ijrainst  whom  it  was  rendered,  and  the  value  of 
the  properly  for  \vlii<h  the  judgment  was  recovered,  to  be  specified 

«  2  R  R.  681,  <>36,  4Ui  ••«!.      «  Cf>dp,  (\2M. 
L.1W8  1M6,  cb  231 ,  ^.       »  Cod.',  ^'MJ. 


Ol-   Till-:  lOXKCUTION.  15<j 

tlien;in,  if  a  (Jclivcry  tliereof  cannot  he  had,  and  il'  .suflicienl  personal 
property  cannot  he  found,  then  out  of  tlie  real  property  helon;,Mng  to 
him  on  the  day  when  the  jndi,'ment  uns  docketed,  or  at  any  time 
thereafter,  and  shall  in  that  respect  he  deemed  an  execution  against 
property.'  The  execution  is  made  returnahle  within  sixty  days  after 
its  receipt  hy  the  oflicer,  to  the  clerk  of  the  court  with  whom  the 
record  of  the  judgment  is  filed.*  If  the  execution  is  issued  upon  a 
judgment  or  decree  rendereil  in  the  old  supreme  court  or  court  of 
chancery,  prior  to  July  1,  1817,  it  shall  he  returned  to  the  clerk  of  the 
court  of  appeals.^ 

^•104.  The  execution  on  a  judgment  in  a  court  of  record  may  issue 
at  any  time  within  five  years  after  the  entry  of  the  judgment.*  After 
that  time,  it  can  only  he  issued  hy  leave  of  the  court.'  But  it  is  held 
that  if  there  has  hecn  an  execution  issued  within  five  years,  a  suhse- 
quei^t  one  may  be  issued,  though  more  than  i\\e  years  have  elapsed.' 
An  execution  u])on  a  decree  of  a  surrogate  may  he  issued  to  the  county 
where  the  transcript  thereof  is  filed,  in  the  same  manner  as  if  it  was 
a  judgment  in  the  court  of  common  pleas  of  said  county.'  And  a 
justice's  judgment,  from  the  tirnc  the  same  is  docketed  in  the  oflice  of 
the  county  clerk,  shall  be  a  judgment  of  the  county  court.'  If  any 
judgment  be  entered  after  the  death  of  a  debtor,  no  execution  can  issue 
at  all,  but  the  judgment  must  be  paid  in  the  course  of  administration.' 
But  if  the  defendant  dies  after  the  judgment,  and  before  execution  is 
issued,  it  may  be  issued  at  any  time  after  one  year  from  his  death,  and 
not  before,  upon  leave  granted  by  the  surrogate.'"  But  if  there  are 
any  other  defendants,  and  the  execution  is  sought  to  be  collected  out 
of  them,  it  may  be  issued  as  if  all  were  living.''  If  the  defendant  dies 
after  the  execution  is  issued,  it  is  to  be  executed  as  if  he  were  livintr. 
And  so  the  death  of  the  plaintiflf  does  not  abate  an  execution,  but  it 
must  be  executed  as  if  he  were  alive."  When  bail  shall  have  been 
taken  on  the  arrest,  the  execution  may  be  issued  against  the  property 
or  the  body  of  the  defendant.'^  But  in  such  case  it  cannot  issue  against 
the  body  until  an  execution  against  the  goods  and  chattels,  lands  and 
tenements  of  such  defendant  shall  have  been  returned  unsatisfied  in 
whole  or  in  part."  But  if  the  defendant  be  imprisoned  on  execution 
in  another  cause,  or  upon  process  in  the  same  action,  or  be  surrendered 

'  Code,  ^289.  «  Co<lc,  V)G.^.  n  Sewcll,  250. 

2Co(U-,\)2fiO.  9  2  R.  S.  351),  $7.  2  Lord  Rnv.  1072. 

3  2  R.  S.  3r.5,  ^20,  4th  cd.            Id.  G07,  <)S,  4th  cd.  Allen,  141.' 

Laws  1847,  ch.  280,  \>57.  '»  2  R.  S.  UIO,  \y]0,  4th  ed.  u  2  R.  S.  36:^,  <)2. 

Ante,  v}42.                                 Laws  1850,  ch.  295,  ^1.  Id.  GU,  ^2,  4th  ed. 

*  Codo.  u283.                                  2  R.  S.  :!G8,  ^27.  "  2  R.  S.  3G3,  (\i. 

5  Code,  ()284.                                Id.  OIC,  ()3G,  4th  ed.  Id.  Gil,  (^i,  4'th  cd. 

6  9  llow.Pr.  R.  245.  "  !'.»  Wend.  (ill. 

7  Laws  1837,  cli.  400,  ',)64. 

"      1844,  ch.  104,  V2. 


nU)  OF  Till-:  EXECUTION. 

in  exoneration  o(  his  bail  in  such  action,  an  cxeouiion  nmy  issue  against 
his  body,  without  any  previous  execution  against  the  pro|Hrty.'  The 
sending  an  cxtM*ution   t<>  the  -slierilV  bcfiue  the    i    '  i   rc«'<ird  is 

actually  filed,  or  tlu>  judgment  dDckctod,  with  in^  s  iiom  the 

attorney  not  to  levy  until  the  same  is  filed  and  docketed,  will  not  bo 
irregular,  if  no  levy  is  made  until  such  time.  The  ofilccr  receiving  the 
execution,  holds  it  as  the  special  agent  of  the  attorney  for  the  time.* 
In  such  case  the  sherifT  should  not  mark  the  execution  as  received  by 
him.  until  the  time  the  judgment  i.s  actually  docketed.  If  the  defendant 
be  taken  in  execution,  all  other  remedies  are  suspended,  and  no  other 
execution  can  be  executed  against  him  ui>on  the  judgment  while  he  is 
so  charged.  But  if  he  die  while  so  charged,  or  escape,  or  be  rescued, 
or  be  discharged  under  any  insolvent  law  discharging  his  person,  new 
executions  may  be  issued  against  his  body,  if  he  escape  or  be  rescued,  or 
against  his  property,  if  he  die  or  be  so  discharged,  in  the  same  majiner 
as  if  he  had  never  been  charged  in  execution.^ 

^  405.  Upon  the  receipt  of  an  execution  the  sherift',  if  desired,  shall 
give  to  the  person  delivering  the  same,  on  the  payment  of  the  fee 
allowed  by  law,  a  minute  in  writing  signed  by  him,  sj)ecifying  the 
name  of  the  execution,  its  general  nature  and  the  day  of  receiving  it;* 
and,  on  like  request,  he  must  give  to  the  party  served,  a  copy  of  such 
execution  without  charue.'  He  must  al.so  mark  upon  it  the  exact  year, 
and  dav,  and  hour,  and  minute  of  its  receipt  by  him.*  And  this  indorse- 
ment will  he  held  conclusive  evidence  against  him,  that  the  execution 
was  in  his  hands  at  the  time/ 

5  100.  Where  the  execution  is  against  the  property  of  the  defend- 
ant, it  may  be  issued  to  the  sherifT  of  the  county  where  the  judgment 
is  docketed,  and  to  several  counties  at  the  same  time.'*  And  though 
the  execution  is  not  so  docketed,  it  will  be  good  in  the  sherilF's  hands 
until  it  be  set  aside  by  a  court  of  comi)etent  authority.'  But  where 
the  execution  is  for  the  delivery  of  real  property,  it  must  be  directed 
and  deBvered  to  the  sherifT  of  the  county  where  such  property,  or  a 
part  thereof  is  situated.'"  And  if  the  execution  be  on  a  judgment  on 
an  attachment  against  a  foreign  corporation,  it  must  bo  directed  and 
delivered  to  the  sherill'  who  served  the  attachment,  and  who  holds  the 
property  attached,  notwithstanding  he  has  since  gone  out  of  office." 

fj  107.  The  plaintifl'  in  the  execution  has  the  right  to  control  the 
sheriir  in  the  service  thereof,  and  .so  has  the  attorney  of  the  plaintifT, 
by  virtue  of  his  original   retainer ;  and  either  may  authorize  him  to 


1  2R  H 

1,1   . 

?W?? 

//, 

^  2V,.f^  440,  f^ir,. 
h\.  '                    !io.l. 

7  1  Hall,  f.71». 

»  2~ 

8 1:  u 

» r.  lurh.  am. 

I 

-I. 

I'l      •                                    .    0(1. 

• ::  u 

«o  CiHlf,  ^'287. 
»  0  Hill,  302. 

iji 

...  ..  1 

.  .       .    .'-J, 

M.  •!_,    .   ,  iiiCiL 

OF  THE  i<:xi:ci;rioN.  ini 

depart  from  tlio  regular  and  ordinary  course  of  cxeculiiig  il.'  'I'lie 
sheriir  may,  l)y  direcli<:)n  of  tlie  j)laintiir  or  his  attorney,  bii  restrained 
and  limilcd  as  a  special  agent,  as  to  every  act  which  is  within  his 
general  authority  under  the  execution.  Thus,  on  an  execution  against 
^•everal  delcidants,  it  is  competent  for  the  plaintill*  or  his  attorney,  to 
direct  the  sheriff  to  whom  the  execution  is  delivered,  to  levy  upon  the 
property  of  all  or  either  of  the  defendants.'  And  the  attorney  may  at 
any  time  countermand  the  execution,  and  the  shorifF  is  bound  to  obey 
his  instructions  and  suspend  proceedings  upon  it  whenever  he  is 
directed  to  do  so,  unless  it  be  a  case  of  collusion  between  the  parlies 
for  the  obvious  purpose  of  defrauding  the  sheriff  out  of  his  fees,  where 
the  plaintiff  and  attorney  are  both  insolvent  or  irresponsible.^  But  the 
sheriff  is  not  bound  to  obey  the  instructions  of  the  plaintiff  in  execu- 
ting the  writ,  if  he  sees  that  it  will  produce  a  great  sacrifice  of  prop- 
erty, but  he  should  rather  postpone  the  sale,  especially  where  the 
plaintiff  carmot  sustain  any  injury  by  the  delay.  He  should  take  all 
necessary  means  to  secure  the  sum  he  is  directed  to  levy,  but  as  to  the 
time,  place,  and  manner  of  sale,  he  is  vested  with  a  sound  discretion. 
The  i^laintiff  has  no  right  to  direct  that  the  purchase  money  shall  be 
paid  in  silver,  especially  where  no  notice  is  given  that  it  will  be 
required  on  the  sale  ;  and  if  he  does,  and  the  officer  obevs  him,  it  is  an 
abuse  of  his  duty  and  censurable.  If  the  party  requires  it,  a  postpone- 
ment should  be  had  so  that  the  defendant  and  bidders  may  be  pre- 
pared.^ Where  the  plaintiff  in  an  execution,  or  his  attornev  instructs 
a  deputy  holding  the  execution,  to  depart  from  his  duty  in  executing 
it ;  as  where  he  directs  him  to  do  nothing  after  making  the  levy  until  fur- 
ther instructions,  the  deputy  ceases  to  be  the  servant  of  the  sheriff  and 
becomes  the  agent  of  the  party,  and  the  sheriff  ceases  to  be  liable  for 
his  acts  or  defaults,  to  such  plaintiff.  And  if  the  party  wishes  to 
change  the  relation,  he  must  at  least  give  notice  to  the  sheriff  himself: 
fresh  instructions  to  the  deputy  is  not  sufficient.^  Where  the  plainliU" 
directs  the  deputy  to  depart  in  any  other  way  from  the  regular  course 
of  proceedings,  as  to  give  a  credit  on  a  sale  of  property  or  the  like,  he 
likewi«e  makes  him  his  agent,  and  the  sheriff  will  not  be  liable  for  the 
money  he  may  have  received  on  such  sale,  but  the  party  must  look  to 
the  deputy.®  But  the  plaintiff  in  an  execution  is  not  answerable  for 
having  made  the  deputy  charged  with  its  service  his  agent  bv  givinr^ 
him  instructions  to  self  goods  levied  upon  on  credit,  if  the  deputy  does 
nothing  in  conformity  with  the  instructions.  For  the  purpose  of  dis- 
charging the  sheriff  fom  liability  for  the  acts  of  the  deputy,  it  must 

>  1  Wend.  368.  »  22  Wend.  509.  s  i  Denio,  5t8 

22  "       566.  Allen,  143  «  6  Cow.  467 

3  Hill,  .3.52.     6  Cow.  467.     3  4  Wend.  480. 
7  Cow.  739.    Allen,  143.       *  2  Cow.  140. 
22 


162  OI^  Tin:  KXKCUTION. 

be  shown,  not  only  thai  the  plaintilTiliiected  the  tlepnty  to  depart  from 
the  line  of  dutv  iinpowd  by  law,  htit  that  the  deputy  followed,  or  under- 
took to  follow  his  direetions  ;  and  heme  where  the  deputy  was  author- 
ized to  sell  goods  tipon  a  credit  on  receivin.tj  tjnod  endorsed  notes,  and 
he  allowed  purehascrs  to  take  the  goods  hiil  by  them  without  receiving 
such  notes,  it  was  lieKl  that  the  deputy  had  not  ftdlowcd  the  instruc- 
tions of  the  plaintilV.  and  that  the  sherilV  was  still  liable  for  his  acts.' 

^  108.  Whenever  any  execution  shall  be  issued  against  the  property 
of  anv  person,  his  ijoods  and  chattels  situated  within  the  jurisdiction 
of  the  ollieer  to  whom  such  execution  shall  be  delivered,  shall  be  bound 
from  the  delivery  of  the  same  to  be  executed.''  if  a  levy  is  actually 
made  at  anv  time  before  the  return  day,  either  un<ler  such  execution 
or  any  other  in  the  hands  of  the  sherilV,  or  any  of  his  deputies.  When 
such  levy  is  made,  the  lien  of  the  execution  relates  back  to  the  time  of 
the  delivery  of  such  execution  to  the  sheriirfor  service.^  And  a  levy 
upon  a  previous  execution  will  be  a  valid  levy  to  create  a  constructive 
levy  on  a  sub-sequent  one,  even  where  such  first  execution  has  become 
dormant  in  the  hands  of  the  sheriff  by  reason  of  instruction  from  the 
plaintitV  to  delay  ;  or  the  proi»erly  levied  on  has  been  removed  out  of 
the  state  and  beyond  the  reach  of  the  shcrifl'.^  But  the  title  of  any 
purchaser  in  good  faith,  of  any  goods  or  chattels,  ac(piired  prior  to  the 
actual  levy  of  any  execution,  without  notice  of  such  execution  being 
issued,  shall  not  be  divested  by  the  fact  that  such  execution  had  been 
delivered  to  an  otrwer  to  be  executed,  before  such  [jurchase  was 
made.*  And  something  more  than  a  mere  presumpti«)n  of  a  levy 
will  be  required  to  defeat  the  title  of  a  bona  tide  j>urchascr  within  a  few 
days  after  the  execution  was  placed  in  the  sheritrs  hands.*  But  one 
to  whom  property  is  assigned  in  payment  of  a  preexisting  debt  is  not 
such  a  jiurchaser  in  good  faith.  The  lien  of  the  execution,  though  no 
levy  is  made  until  after  the  assignment,  is  superior  to  the  assignee's  title.* 

^  100.  1 1  there  are  several  executions  issued  out  of  a  court  of  record, 
jiK  luding  executions  uj)on  a  justice's  judgment,  tlocketed  in  the  olhce 
of  the  county  clerk,  against  the  same  defendant,  that  which  shall  have 
bet-n  first  delivered  to  an  offii-er  to  be  executed  shall  have  preference, 
notwithst.mding  a  levy  may  be  first  made  under  another  execution.* 
If  there  be  one  or  more  executions,  and  one  or  more  attachments 
against  the  pro|»erty  of  the  s;ime  defendant,  or  if  there  be  several 
attachments,  the  same  rule  shall  prevail  in  determining  the  preference 

»  «  84-M.  4r,Z.  »  2  R.  8.  nm,  $17.  '  6  Denlo.  fil'.). 

»  2  R.  H.  •■;•••'•,  <A-y  I<i   Ol:!,  (\17,  llh  i-(l.  •!  Hill,  loH. 

I.I  «;i :'.,»;, I :j,iih«<l  4  Hill,  ir.H.  n  f.-iip-.m 

1  2  C"!!.    1.M  n  W.I..1.  618.  ;n»nrl..  I'll.  f.30. 

«  17  .f'.l.i,    11'-,  11  I'.iitr.-,  21.  1  W.I..1.  .'!<io. 

r,  (;„w.  -.'/MK  *  H  ij.iri..  :j.!.'j.  •  2  R.  H.  nor,,  (^ii. 

2  Com.  4&1.  Id.  01:3,  $1  i,  Uh  cd. 


OF  Till-:  Hxi:cuTiOx\.  1G3 

of  such  execution  or  atlarhment.'  But  if  a  levy  iind  sale  of  nnv  ijo^d^ 
and  chattels  shall  have  heen  made  under  such  other  execution,  hdoro 
an  actual  levy  under  the  execution  first  delivered,  the  sale  will  he  valid 
and  such  goods  and  chattels  shall  not  ho  levied  upon  or  sold  hy  virtue 
of  such  lu'st  execution.  Where  however,  the  ollicer  sells  goods  and 
chattels  upon  a  junior  execution,  hut  heforc  paying  over  the  money,  he 
discovers  that  a  prior  execution  is  cntitleil  to  the  whole  or  a  [)art  of 
the  money  raised,  he  may  at  any  time  hefore  making  his  return,  ajiply 
the  money  accordingly.'^ 

^  110.  Although  an  execution  issued  out  of  a  court  of  record,  hecomes 
a  lien  upon  the  goods  and  chattels  of  the  del'endant  from  the  time  of 
the  delivery  thereof  to  the  officer  for  execution,  yet  any  execution 
or  attachment  issued  out  of  any  court  not  being  of  record,  if  actually 
levied,  shall  have  preference  over  any  other  execution  issued  out  of 
any  court,  whether  of  record  or  not,  which  shall  not  have  been  previ- 
ously levied.' 

^411.  But  though  executions  issued  out  of  courts  of  record  are  liens 
upon,  and  are  to  be  paid  out  of  the  proceeds  of  the  sale  of  the  defend- 
ant's personal  property,  in  the  order  in  which  they  were  received  by 
the  sheriir,  yet,  under  certain  circumstances,  the  lien  of  the  older 
execution  may  be  lost  by  becoming  dormant  m  the  hands  of  the  sheriff, 
and  a  junior  execution  against  which  such  objection  cannot  be  made, 
may  become  entitled  to  the  preference.  What  will  render  an  execution 
dormant  must  be  determined  by  the  circumstances  in  each  particular 
case.  Mere  delay  or  neglect  of  duty  on  the  part  of  the  sheriff,  without 
the  express  direction  of  the  party  issuing  the  execution,  will  never 
render  it  dormant.  It  can  only  be  so  in  cases  where  the  plaintiff  or 
party  in  interest  has  interfered  with  its  execution.*  If  after  a  levy,  the 
sheritf  receives  express  direction  to  delay  the  sale  until  a  junior  execu- 
tion is  received,  this  will  render  the  transaction  fraudulent.^  And  so 
where  the  plaintifT  directed  a  levy,  and  that  it  be  kept  secret  from  the 
defendant,  it  was  construed  to  be  a  direction  for  delay,  and  the  execution 
was  decla'-ed  dormant.*  And  where  the  plaintiff,  after  levy,  directs  a 
stay  until  farther  directions,  and  the  defendant  in  the  meantime,  with 
whom  the  property  is  left,  sells  it  to  a  bona  fide  purchaser,  it  has  been 
held  that  the  execution  had  become  dormant,  and  the  lien  of  the  levy 
gone.'     So  if  the  defendant  is  permitted  to  use  and  consume  the  goods 

«  2  R.  S.  366,  ^15.  «  5  Cow.  390.  s  16  Barb  589 

Id.  613,  ^15,  -Ith  cd.  12  Wcn.l.  404.  t  2  Weud.  419. 

»  2  Com.  451.  6  Hill,  380. 

»2R  S.46G,  V)16.  «  11  Jolm.  110. 
Id.  613,  ()16,  4lU  od.  17  John.  274. 

4  Cow.  461.  3  Cow.  272.    5  Cow.  390. 

19  Wend.  495.  7  Cow.  560. 

20  Wend.  41.  2  liill,  304.    5  Hill,  380. 


H\[  OF  Till-:  KXKCUTION. 

levied  on,  this  is  cvitlcncc  of  fraud,  and  the  goods  may  be  liable  to  a 
s«ubse(juent  execution.'  And  thoui^h  the  property  in  any  such  case  is 
in  the  hands  of  a  former  shorilV.  the  present  shcrilT,  on  receiving  a  junior 
execution  against  the  owner  of  the  jiropi-rty,  will  be  bound  to  levy; 
for  where  the  shcriirfmds  the  former  sherilV  in  the  possession  of  pro|>erly 
against  which  he  holds  an  executi«>n,  it  is  his  duty  to  inquire  under 
what  circumstances  he  holds  it." 

^  -llx;.  IJut  merely  leaving  the  property  levied  upon  in  the  possession 
of  the  defendant,  though  with  the  consent  of  the  plaintifl',  is  not  of 
itself  fraudulent,  either  as  against  sul)sequent  creditors  or  purchasers, 
unless  the  sherifl'  is  also  directed  by  the  party  to  delay  the  sale,  or  the 
defendant  is  allowed  to  consume  the  proi)erty.^  And  this,  though  there 
be  delay  of  a  year.*  To  render  an  execution  dormant,  there  must  be 
an  interference  with  the  execution  by  the  plaintifl'.  But  it  is  not  such 
interference,  where  the  plaintift'says  that  he  does  not  want  the  defendant 
distressed  ;  or  that  he  was  honest  and  would  not  secrete  his  goods,  and 
that  the  sherifl'  might  levy  on  them,  and  safely  leave  them  in  the  defend- 
ant's custody  ;  nor  where  he  says  to  the  sherifl',  you  must  have  my 
monfey  at  the  return  of  the  writ,  but  I  do  not  object  to  any  indulgence 
you  can  give  to  the  defendant  in  the  meantime  ;  nor  by  saying,  levy  and 
gel  my  money,  but  you  need  not  move  the  horse  and  wagon  and  sell 
until  the  man  has  hauled  in  his  crop,  which  is  nearly  ready  ;  nor  by  say- 
ing levy  on  all,  but  do  not  sell  till  his  wife  is  recovered  from  her  illness.' 
Where,  after  a  levy  and  renioval  of  the  property,  a  third  person  pur- 
chased the  execution  and  directed  the  oflicer  to  return  the  property  and 
leave  it  with  the  defendant,  no  reason  appearing  to  have  been  assigned 
for  this  direction,  and  the  delator  afterwards  sold  the  property  as  his 
own,  and  in  the  following  month  the  oflicer  took  possession  of  it  and 
sold  it  under  the  execution,  it  was  held  that  as  there  were  no  instruc- 
tions to  delay,  and  no  express  permission  to  the  defendant  to  use  the 
property,  the  execution  was  not  fraudulent  as  against  the  i>urchaser.* 
And  where  an  execution  was  issued  in  November,  with  instructions  to 
levy  upon  the  defendant's  jiroperty  which  consisted  principally  of  hides 
in  vats  which  could  not  be  sold  without  sacriflce  before  spring,  and  the 
oflicer  was,  for  this  reason,  at  the  same  time  instructed  not  to  sell  until 
May  ;  but  other  executions  being  issued,  he  was  directed  to  hasten 
the  sale  under  the  first,  the  court  held  that  there  was  no  fraud,  but 
that  the  delay  under  the  circumstances  was  proper.^     But,  if  from  the 

I  2  W<-n<l,  410,  »  8  Cow.  272.  *  G  Hill,  232. 

2  Jolin.  118.  11  J. .1,1..  110.  Ml  Wcn.l.  OVJ. 

16  "     428.  C  Hill,  'J.TJ.                                   Or.ili.iiu'.s  I'r.  381. 

17  "     3'i2.       .  12  W.M.I.  101.  •  3  Cow.  272. 
»  Or.ihani'»i  I'r.  383.  10  John.  128.  '  7  Cow.  600. 

6  Cow.  3'JO. 

7  "     600. 


OF  Till':  I'.XECUTION.  1G5 

directions  of  the  jilaiiitiH"  it  is  a|)i)arciit  llial  tlic  levy  is  macJc,  not  to 
collect  the  money,  but  to  protect  tlio  dcreiidunt's  goods  from  other 
creditors,  it  will  bo  otherwise.' 

^  U.'J.  Where  there  is  a  question  of  liiis  character  between  dilVerent 
executions,  the  order  of  priority  is  usually  determined  by  the  <;ourt 
upon  motion,  between  the  execution  creditors.  And  where  in  such 
case,  the  court  direct  liow  the  money  realized  shall  be  applied, 
the  shcriir  is  bound  to  apply  the  same  accordingly.  And  the  county 
court  has  the  power  ,to  determine  the  priority  between  an  execution 
issued  out  of  such  court,  and  another  out  of  the  supreme  court.  Where 
there  is  a  claim  that  the  first  execution  has  become  dormant,  and  that  a 
junior  execution  is  thereby  entitled  to  precedence,  the  sherilf  ought, 
before  paying  over  the  money  to  either  party,  to  take  a  proper  indem- 
nity against  doing  so.  Or,  what  is  i>erhaps  better,  pay  the  money  into 
court,  and  leave  the  parties  to  settle  the  question  of  right  between  them- 
selves. 

^  114.  On  the  receipt  of  an  execution,  if  the  defendant  will  not  pay 
the  amount  directed  to  be  collected  thereon,  it  is  the  sherill's  duty  to 
proceed  to  execute  the  same  according  to  the  command  t/.iereof  ;^  and 
for  this  purpose,  to  make  a  levy  upon  the  goods  and  cnattels  of  the 
defendant  suflicient  to  pay  the  amount  directed  to  be  collected  upon 
the  execution,  with  interest  and  his  fees,  if  so  much  can  be  found  in 
his  county.  The  levy  may  be  made  on  the  return  day  or  at  any  time 
before,  but  not  after  ;  and  if  the  ollicer  does  levy  after  the  return  day 
he  will  be  a  trespasser,  and  if  he  so  levies  by  direction  of  the  plaintiff 
both  will  be  so  liable.'  But  the  ofhcer  should  not  wait  until  the  return 
day  before  he  levies,  for  the  defendant  may  remove  his  goods  from  the 
county,  or  sell  them  to  a  bona  fide  purchaser  without  notice  of  the  exe- 
cution, or  they  may  be  seized  upon  an  execution  or  attachment  issuing 
out  of  a  court  not  of  record  ;  in  all  of  which  cases  the  sheriff  may 
become  responsible  to  the  plaintitT  for  the  amount  of  the  execution. 
Besides,  it  is  the  sheriff's  duty  to  make  return  of  the  execution  and  pay 
over  the  amount  due  thereon  by  the  return  day,  and  he  may  be  attached, 
or  an  action  will  lie  against  him  for  not  doing  so.*  He  should  there- 
fore levy  at  the  earliest  day,  and  if  the  defendant  will  not  pay,  adver- 
tise and  sell  his  goods  within  such  time,  that  if  they  do  not  bring  enough 
t^  satisfy  the  execution  there  will  be  time  to  sell  his  real  estate  before 
the  return  ilay. 

^  415.  But  the  sheriff  has  no  power  to  settle  or  discharge  an  execu- 
tion, without  actual  payment  of  the  amount  directed  thereon  to  be 
collected,  with  interest,  unless  he  proceed  to  execute  it  in  the  due  course 

»  Graham's  Pr.  384.  3  2  Caino,  243.  <  2  R.  S.  440,  f;77. 

a  2  R.  S.  440,  (yl.  4  Joliu.  450.  Id.  684,  hi,  4th  ed. 

Id.  G84,  v97,  4th  ed.  IG    "    287. 


IGG  oi-  Tni:  hxecution. 

of  law.  Aiul  if  lu'  ifluins  an  excculi«>n  "  salislled"  upon  receiving 
the  (lefendnnt's  nolo,  instead  of  the  money,  it  will  be  no  satisfaction  of 
the  jiulgn)cnt  or  eXL'cuti(»n  ;'  not  even  in  case  the  defendant  paiil  the 
note  to  another  to  whinn  it  was  transferred."  Thouirh  it  will  bo 
otherwise  if  it  is  taken  by  the  direction  of  the  plaintiH",  or  the  transac- 
tion is  sul)sequen(ly  ratified  by  him.  And  so  the  sherilT  may  take 
security  for  the  debt  in  the  re<5'idar  course  of  execution,  as  where  ho 
levies,  and  takes  a  receipt  for  the  goods  with  an  agreement  that  they 
be  produced  on  dcman<l.  f»r  to  pay  the  debt.  If  the  receipt  be  for  the 
whole  debt,  costs,  interest  and  ice^,  and  the  goods  are  not  forth- 
coming, if  they  are  lost  to  the  defendant  by  the  ollicer,  the  plaintilT  or 
the  receijjtor,  it  will  be  a  satisfaction  of  the  debt,  lht)U^dl  the  goods 
Icvieil  on  were  insullicient  to  pay  the  amount.  And  in  such  case,  the 
sheriir  cannot  afterwards  levy  on  the  property  of  the  defendant  to 
satisfy  the  execution,  though  the  first  was  insufficient,  or  the  olficerhad 
been  unable  to  receive  anything  on  his  rcceij)!.'  This  however,  only 
applies  in  a  case  where  the  properly  levied  on  belonged  to  the  defend- 
ant in  the  execution,  and  was  subject  to  such  levy,  and  that  it  has 
been  lost  to  the  defendant  through  the  negligence  of  the  ollicer,  the 
receiptor  or  the  plaintilf;  and  not  to  a  case  where  the  i>roi)rrty  has 
been  retaken  by  the  defendant;  or  did  not  belong  to  him,  but  to  another, 
who  repossessed  himself  of  it.  For  it  is  now  the  well  settled  rule  that 
where  the  defendant  has  neither  jtaid  the  debt,  nor  lost  his  property  by 
reason  of  the  levy,  such  levy  is  no  satisfaction  of  the  exefution.*  And 
where  money  is  tendered  to  the  sherill"  upon  any  execution  in  his  iiands, 
it  is  his  duty  to  receive  it  and  forbear  to  levy  and  sell,^  and  if  he  does 
levy  or  sell  after  a  valid  tender  of  the  lull  a^nount  of  debts  and  costs, 
he  is  a  trespasser. 

5  no.  And  any  one  indebted  to  the  defendant  in  the  execution,  may 
pay  any  execution  against  the  property  of  his  creditor,  in  the  hands  of 
the  sherilF;  or  apply  the  amount  of  his  indebtedness  thereon,  and  tiie 
sheriflf'g  receipt  therefor  will  be  a  suflicient  discliarge  for  the  amount 
paid.'  Bill  such  payment  cannot  be  made  after  there  is  a  notice  of 
an  assignment  of  the  imlebtedness.^  Nor  can  a  vcrdid  in  tort  be  paid, 
for  the  judf^ment  in  tort  must  be  perfected  before  it  can  be  treated  as 
an  indebtcrlncss.* 

(Jin.  The  policy  which  forbids  the  sherilV  from  executing  final 
process  in  which  he  is  a  party,  equally  restrains  him  from  executing  any 
execution  in  whi<-h  he  may  in  any  way  have  actpiired  an  interest.*  If, 
while  it  is  in  his  hands  for  execution  he  accjuircs  any  interest  therein,  he 

•  1   Tow.  40.  »  1"  T.l.x    "'"7.  •  Cvlo,  ^;20.1 

•1  C".v.  r,53,  <1  1  •»  3  How.  I'r.  R.  aSG. 

All' n,  115.  I  ■    >.   1%.  •  3  (Nxlo,  Uc'p.  CO. 

16  Jolin.  143.  .:;  Uvi..l.  IW,  •  1  Ktriiaii,  Ul. 

•  15  John,  413.  »  &  Cow.  218. 


or  Till':  i:xi:ciiTioN.  10? 

cannot  proccetl  in  the  execution  thereof.  He  cnnnrii,  \viilj  his  own 
money,  pay  the  j)I;iiMtill'  and  iice))  the  (lerenthuit's  properly,  nor  hold 
the  execution  and  nfterwards  make  tlie  money  advance  out  of  it.'  Xor 
can  the  shcrillwho  advances  the  tnoncy  on  an  execution  in  his  hands, 
take  a  hond  or  note,  or  other  security  for  the  sum  so  advanced,  and  retain 
the  execnlioii  in  liis  hands  to  enforce  payment  of  sur-h  hond  or  security, 
or  the  moneys  advanced.^  And  even  where  the  .«herifl'is  attaclied  for 
not  returnini,'  the  execution,  and  the  dci)uty  who  held  it,  pays  it  and 
takes  an  assignment  thereof,  he  cannot  enforce  the  collection  thereof 
by  a  suhscquent  execution,  though  the  (K-fendant  assented  to  the 
assignment,  and  promised  to  i)ay.^  And  it  makes  no  (hlVerence  that 
the  payment  of  the  execution  was  made  upon  the  order  of  the  court, 
by  way  of  a  fine  for  neglect  of  duty  under  tlie  execution  ;  nor  that  the 
money  was  paid  by  another,  and  the  assignment  taken  by  such  other 
party,  if  it  was  in  truth  ])aid  with  the  sheriff's  money  and  for  iiis  benefit. 
He  can  do  no  act  under  such  execution  to  eid'orce  the  collection 
thereof,  and  a  sale  of  lands  thereunder  by  him,  will  be  void,  and  confer 
no  rights  on  the  purchaser.^  If  the  sheritl"  is  compelled  to  pay  an 
execution  in  his  hands,  which  has  not  been  collected  out  of  the  defend- 
ant, he  should  at  the  time,  make  proper  api)lication  to  the  court,  upon 
notice  to  tlie  defendant,  to  be  subrogated  in  the  place  of  the  plaintiff 
in  the  execution.'  Relief  will  in  most  cases  be  granted  by  the  court, 
though  not  so  as  to  affect  the  rights  of  others.  Thus  where  the  deputy 
left  the  property  levied  upon  with  the  defendant  who  eloigned  it,  and 
the  officer  was  compelled  to  pay  the  value  thereof,  and  took  an  assign- 
ment of  the  judgment,  he  was  subrogated  by  the  court  in  the  place  of 
the  plaintiff,  as  against  the  defendant,  but  not  so  as  to  affect  purchasers  of 
his  real  estate,  under  subsequent  judgments.^ 

i5ll8.  Where  there  are  several  defendants  in  the  execution,  and 
some  are  principals  and  some  sureties,  the  sheriff  ought  to  collect  the 
execution  out  of  the  separate  property  of  such  principals,  if  the  same 
can  be  done  without  embarrassing  or  delaying  him  in  makincr  the 
amount  thereof  by  the  return  day.  But  if  the  sheriff  has  no  means  of 
determining  who  is  primarily  liable,  or  the  question  is  at  all  doubtful, 
he  is  not  bound,  at  his  peril,  to  decide  u]>on  the  conflicting  claims  of  the 
defendants,  to  equity  as  between  themselves.  But  the  defendant  who 
claims  to  be  surety,  and  wishes  to  have  the  execution  enforced  against 
his  co-defendants  should  apply  to  the  equitable  powers  of  the  court  for 
direction  to  the  sheriff  to  resort  to  the  property  of  such  co-defendants.' 

§  419.  It  is  the  duty  of  the  sheriff  not  only  to  collect  the  moneys  due 

»  7  John.  426.  3  5  mn^  5G6.  s  19  Wend.  79. 

15  John.  443.  <  1  Kom.-in,  61.  7  2  Barb  Ch  403 

»  23  Wend.  314.  s  12  Barb.  135. 


\GH  OF  Tinc  k\f:cution. 

upon  an  execution  by  ihc  return  »lay  thereof,  but  to  brin;j  the  same 
into  court,  or  ]>ay  the  same  over  to  the  phuntiiror  his  attorney,  by  such 
return  day.  It  is  proper  that  he  do  so  as  soon  as  he  conveniently  can, 
after  the  same  is  collected,  but  he  is  not  bound  to  do  so  before  the 
return  day,  though  hen'iay  have  collected  it  before.  The  usual  course 
is  to  pay  over  the  moneys  collected  to  the  plaiiitilV,  or  the  party  owning 
the  jud.jment,  or  to  the  attorney  who  issued  t!»c  execution,  but  it  may 
be  paid  into  court ;  that  is.  to  the  clerk  of  the  court  where  the  judgment 
i-ecord  is  fded,  and  where  the  execution  is  to  be  rctinned.  And  if 
there  is  any  question  as  to  whom  the  money  realized  upon  the  execution 
belongs ;  or  if  there  is  any  controversy  between  dillerent  execution 
creditors,  as  to  the  priority  of  their  executions,  or  the  like,  the  proper 
course  will  be  to  pay  the  money  into  court,  in  the  actions  under  which 
claims  thereto  are  made,  and  leave  the  parties  in  interest  to  apply  to  the 
court  for  a  determination  of  such  conflicting  claims.  But  the  money 
must  be  paid  over  to  the  party,  or  his  attorney,  or  into  court,  on  or 
before  the  return  day,  and  without  demand,  and  if  the  sherifl'  fails  to  do 
so,  he  will  be  liable  to  be  proceeded  against  by  attachment  and  fine,  and 
to  an  action  at  the  suit  of  the  party  ag<j:ricved,  at  the  same  time.  And 
it  will  not  be  an  answer  to  such  attachment  or  action,  that  the  sheriff 
had,  before  any  proceedings  were  taken  thereon,  returned  the  execution 
to  the  proper  otlice,  with  a  return  thereon  that  he  had  the  moneys  in 
his  hands,  subject  to  the  plaintin''s  order.  Nor  will  the  payment  of 
the  money  into  court,  after  the  suit  is  brought,  without  acceptance  by 
the  plaintiir,  be  an  answer  to  such  action.  But  where  the  sherifl' 
under  an  indemnity,  has  sold  the  properly  of  the  defendant,  and  received 
the  money  to  satisfy  the  execution,  he  is  not  liable  to  an  attachment  for 
not  paying  it  over  when  it  aj)pears  that  he  has  been  pued  by  a  prior 
judgment  creditor  clainung  a  jiortion  of  the  fund.  The  court  will  not 
settle  the  rights  of  the  parties  in  such  case  upon  a  motion  for  an  attach- 
ment.' And  if  after  levy  and  sale,  a  third  person  sues  for  the  pmjierty 
and  recovers  a  sum  exceeding  the  amount  made  on  the  execution,  the 
sheriff  will  not  be  liable  to  the  plaintifl'in  llie  execution  for  the  moneys 
collected.  And  it  will  not  vary  his  liaijility,  lli.it  he  has  been  indem- 
nifie<l  by  such  plainlilV." 

3  ■I'iO.  The  sherifl*  must  collect  Ooui  the  defendant,  if  he  r.:\u.  the 
amount  due  upon  the  execution,  with  interest  to  the  time  he  receives 
the  same  ;  and  this  is  nil  that  he  will  be  bound  to  pay  over  to  the 
plaintiff,  though  he  shovdd  retain  the  moneys  in  his  hands  from  the  lime 
of  the  receipt  lliercof,  until  the  return  day.  He  is  not  linble  to  the 
payment  of  interest  on  the  moneys  collected  by  him  while  they  so 
remain  in  his  hands.     Hut  if  he  retains  the  moneys  in  his  hands  after 

«  y  How.  I'r.  R.  409.  •  21  Wwl.  204. 


OF  TFII-:  i:XECUT10N.  IG9 

the  rclurn  day,  he  will  be  liiible  to  the  plaiiiliirfor  tlic  interest  thereon 
from  the  return  day,  until  the  time  of  payment.  And  it  will  make  no 
dilfercnco  that  he  has  been  ruled  to  return  the  execution  after  sucli 
suit  brought,  and  lias  thereujion  paid  the  money  into  court,  if  without 
acceptance  by  the  plaintilf.  But  if  the  moneys  are  stayed  in  the  hands 
of  the  sheriff  by  appeal,  injiuiction  or  order,  or  there  is  no  proper  person 
to  receive  the  same,  he  will  not  be  liable  to  the  payment  of  interest 
thereon  during,'  the  time  he  may  so  retain  such  moneys.  Nor  will  the 
defendant  be  liable  to  pay  interest  in  such  case.  All  the  plaintiff  can 
claim  will  be  the  amount  due  upon  his  execution,  with  interest  up  to 
the  day  the  amount  was  paid  to  the  shcrifT.' 

^  4-^1.  If  an  appeal  is  brought  from  a  judgment  directing  the  pay- 
ment of  money,  it  shall  not  stay  the  execution  of  the  judgment,  unless 
a  written  undertaking  be  executed  on  the  part  of  the  api)ellant  by  at 
least  two  sureties,  to  the  effect  that  if  the  judgment  appealed  from,  or 
any  part  thereof,  be  affu-med,  the  appellant  will  pay  the  amount  directed 
to  be  paid  by  the  judgment,  or  the  part  of  such  amount  as  to  which  the 
judgment  shall  be  affirmed,  if  it  be  affu'med  only  in  part,  and  all  dam- 
ages which  shall  be  awarded  against  the  appellant  upon  the  appeal.* 
Such  undertaking  shall  be  of  no  effect,  unless  it  be  accompanied  by  an 
affidavit  of  the  sureties  that  they  are  each  worth  double  the  amount 
specified  therein.^  And  the  same  must  be  duly  proved  or  acknowl- 
edged in  like  manner  as  deeds  of  real  estate,^  and  filed  with  the 
clerk  with  whom  the  judgment  or  order  appealed  from  was  entered.^ 
If  an  execution  has  issued  in  such  case,  the  sheriff  is  not  to  regard  the 
appeal  until  he  has  been  served  with  a  certificate  of  the  clerk  of  the 
court  of  the  due  fding  of  such  security,  but  he  should  proceed  with  the 
execution  of  the  writ.  And  if  he  has  made  a  levy  before  such  service. 
he  is  to  retain  the  same  ;  and  if  he  has  commenced  a  levy  he  should 
complete  the  same  ;  and  so  if  he  has  arrested  the  defendant,  he  is  to 
keep  him  in  custody  until  the  determination  of  the  appeal. «  If  the 
sureties  are  excepted  to,  and  they  or  others  do  not  justify  according  to 
the  rules  and  practice  of  the  court,  the  appeal  will  be  regarded  as  if  no 
undertaking  had  been  given. ^ 

(^  422.  The  execution  is  made  returnable  within  sixty  days  after  its 
receipt  by  the  sherilT,  whether  it  be  against  the  body  of  the  defendant, 
or  his  property.^  In  the  computation  of  this  time,  the  day  of  the  receipt 
of  the  execution  by  the  sheriff  is  to  be  excluded,  and  he  has  the  whole 

»  18  John.  133.  a  Code,  (;335.  7  Code,  \J341. 

1  Wend.  534.  ^  Co<le,<;3tl.  s  Code,  ^290. 

4      "       G7S.  ^  Rules  Sup.  Court,  71.  6  How.  Pr.  R.  396. 

7  Hill,  108.  5  Code,  ^343.  6  Barb.  25G. 

7  How.  Pr.  R.  44.  «  1  Duor,  679. 


4  Seldcn,  62. 


23 


170  OF  TIIK  i:Xi:CUTI()N. 

of  the  sixticlli  dny  in  which  !•)  cxecuto  or  return  it.'  Hut  ho  may 
of  course  return  it  within  thai  time,  if  he  has  made  the  money,  though 
he  is  not  bound  to  ilo  so  until  the  return  day.  And  so  he  m.iy  return 
the  execution  within  the  sixty  chiys  if  he  can  find  no  projtL-rty  of  the 
defendant  whereon  to  levy.*  Hut  at  the  end  of  the  sixty  days,  whether 
he  has  made  the  money  or  not.  he  must  return  the  execution,*  (and 
make  duo  return  of  his  proceedings  thereon,  which  return  shall  be 
signed  by  liim,*)  to  the  clerk  with  whom  the  record  of  the  judgment 
is  filed  ;•  and  if  issued  upon  a  judgment  or  decree  rendered  in  the  old 
supreme  court,  or  court  of  chancery  previous  to  the  first  Monday  of 
July,  1847,  it  shall  be  filed  with  the  clerk  of  the  court  of  appeals.' 
The  duty  of  the  shcrilV  in  payinL!;  over  moneys  collected  by  him  upon 
an  execution  has  been  already  pointed  out,^  while  his  liability  in  case 
of  neglect  to  make  return  of  the  process  has  been  referred  to."  The 
defendant  as  well  as  the  plaintilf  may  require  the  slierilT  to  return  an 
execution  on  which  money  has  been  collected  or  paid.'  But  neither 
the  plaintiff  nor  defendant  can  do  so  if  the  parties  have  compromised 
before  the  return  day  and  before  sale.'"  Nor  can  a  plaintilf  compel 
tljc  sheriff  to  return  a  writ  in  the  hands  of  a  special  deputy  appointed 
by  him,  at  the  request  of  the  plaintill." 

^  i'23.  If  the  defendant  has  no  goods  or  ciialtcls,  lands  or  tenements 
within  the  county  subject  to  the  execution,  the  sherilf  must  return 
that  fact;  or  in  such  case,  the  words  *' nulla  bona,'"  endorsed  upon  the 
execution,  ami  signed  by  the  olllcer,  will  be  a  sulficient  return.  Ami  so 
if  the  sherilV  finds  thai  any  property  he  may  have  levied  on,  under  the 
execution,  is  subject  to  a  previous  lien,  sutlicient  to  exhaust  it,  he  may 
return  that  the  defendant  has  no  goods  or  cdiattel.s,  lands  or  tenements, 
or,  as  in  other  c.ises,  *simj)ly  nulla  bi>na."  So  too  where  he  seizes  goods, 
and  they  are  claimed  by  another,  if  a  jury  sunnnoned  by  the  sherilFto 
try  the  validity  of  such  (daim,  find  the  title  in  such  flairnanl  and  the 
plaintiir  refuses  or  neglects  to  sulliciently  indemnify  the  sherill"  against 
such  clainj,  nulla  bona  will  be  the  proper  return.  If  the  sherift'  acts  in 
good  faith  in  such  case,  such  iniiuest  will  be  conclusive  in  his  favor  in  an 
action  against  him  by  the  plainlill"  on  the  ground  that  such  return  is 
false."  But  if  the  plainlifl'  oflers  to  sufllcionlly  indemnify  the  shcrifT 
in  any  case  of  claim  by  another,  lie  cannot  excuse  himself  by  taking 
an  intiuest.  .So  nulla  bona  will  be  the  jiroper  return  where,  alter  levy 
and  sale,  the  olliccr  has  been  sued  and  a  judgment  recovered  against 

I  6  Cow.  6C0.  •  2  R.  8.  3G6,  (>20,  4th  o.l.        n  I  Tcnn,  110. 

•  2"^'       '   ■"  '  '-'7,  ch.UbO,  (>67.      «a  20  WiMi.l.  •,::J. 

;;  "  All.-ii,  2(tr>. 

C  H  J..lm.  inr,. 

»C.  l'>    "     ''S. 

«  2  I.  .7  '  lo    "     117.     8  Cow.  65. 

M.  o.->»,  Vj7,  llh  c<l.  U   i      .^uj..  Court,  0.  7  Wond.  2Uy.    1  Hall,  606, 

•  Code,  ^W.  '"  Htwcll,  WJ. 


Ol<^  TIIH  EXECUTION.  171 

him  fur  an  amount  equal  lo  the  money  realized  on  the  sale.'  If  the 
sheriff  has  made  a  levy,  and  is  unable  to  raise  the  money  thereon  by 
reason  of  the  want  of  buyci's,  he  may  return  that  fact  upon  the  cxt-cu- 
tion,  and  retain  the  itroi)erty  in  his  hands  until  he  is  served  with  the  writ 
of  venditioni  exj)0nas,  when  he  must  sell  the  ]iroperty  at  whatever 
price  it  will  bring.  When  the  sheriff  collects  a  part  only,  of  the 
moneys  due  on  the  execution,  he  must  state  in  his  return  the  amount 
made,  and  return  the  execution  nulla  bona  for  the  residue.  If  he  col- 
lects tlic  whole,  he  returns  that  he  has  made  the  amount  of  the  execu- 
tion, but  usually  he  simply  endorses  "  satisfied,"  on  the  execution,  and 
signs  it  as  in  other  cases.  Tiiis  return  will  be  conclusive  upon  him 
that  he  has  received  the  amount  of  the  execution,*  but  it  will  be  no 
evidence  whatever  that  the  money  was  paid  to  tiie  party  entitled 
thereto.  It  is  usual  and  i)roper  therefore  to  take  the  receipt  of  plaintiff 
or  his  attorney  upon  the  execution;  or  what  will  be  safer,  take  a  sepa- 
rate receipt  for  the  amount  of  moneys  paid.^  When  the  sheriff  makes 
a  levy  and  sells  personal  property  concerning  which  there  is  likely  to 
be  any  litigation,  he  ought  to  return  his  levy  upon  the  execution,  and 
what  property  was  sold,  and  what,  if  any  was  returned  to  the  defend- 
ant, and  such  indorsement  of  levy  will  be  prima  facie  evidence  in  his 
favor  in  any  action  that  may  be  brought  against  him  for  such  levy  or 
sale.  Where  the  sheriff  has  been  prevented  from  taking  the  defend- 
ant's goods  by  reason  of  the  bringing  an  appeal,  he  should  return  the 
special  fact,  and  not  nulla  bona.^  But  if  the  proper  security  has  not 
been  given,  there  is  no  stay  of  proceedings,  and  the  fact  that  such 
appeal  was  brought  will  not  of  itself  be  a  good  return.'  When  real 
estate  is  sold  on  execution,  it  is  not  necessary  to  specify  in  the  return 
how  the  moneys  were  made  ;  whether  on  the  sale  the  particular  lands 
or  not ;  nor  is  it  necessary  that  there  should  be  a  return.  Such  return 
is  not  necessar}',  and  forms  no  part  of  the  purchaser's  title,  and  the  fact, 
if  necessary,  may  be  proved  by  parol.*  When  the  sheriff  has  returned 
an  exe'^ution  he  cannot  be  ordered  to  return  a  farther  specification  of 
the  property  sold,  to  enable  the  defendant  to  sue  him.^ 

§  -421.  The  right  of  the  sheriff  to  make  return  of  an  execution  nulla 
bona,  before  the  return  day,  where  he  can  find  no  property  whereon 
to  levy ;  oT  where  the  defendant's  property  is  covered  by  previous 
liens  sufficient  to  exhaust  it ;  or  where  it  is  claimed  by  another,  is 
undoubted.^  And  in  determining  whether  it  be  a  proper  case  to  make 
such  a  return,  lie  has  a  reasonable  discretion,  and  such  return  will  not 

«  21  Wen.l.  2G4.  «  2  Cainc,  63.                           7  1  Sandf.  683, 

»  3  Sel.l.  453.  1  Jolni.  Ca.  153.                    8  Aute  <\422 

»  5  Denio,  594.  4  Wheat.  603. 

*  Allen,  205.  Cow.  &  Hill's  notes,  1094. 
»  9  Wend.  224. 
Code,  ^335. 


17'2  OF  Tin:  ij:\^  . 

be  set  aside  ns  Ailse,  on  nlVuiavits.  on  the  a|)plirntion  of  the  defentlant, 
except  where  fraud  or  (H)lUision  is  shown  ;  and  where  there  are  previous 
Hens  it  will  not  be  set  aside  where  the  eviilenre  prodiu'ed  on  a 
motion  for  that  purpose  is  contradictory  in  reference  to  the  vaUic  of 
the  pro|»erty  over  and  above  such  jnevious  hens.'  Thouj^h  it  is  said 
that  the  shcriiV  has  a  discretion  in  niakini?  s\ich  return,  this  must  be 
understood  as  having  reference  to  the  question  whether  the  court  will 
set  aside  such  return,  where  he  may  have  erred  in  judgment  in  making 
it,  and  not  as  alVecting  the  rights  of  the  plainlifT  or  the  defendant, 
to  an  action  against  him  for  the  damages  they  might  sustain,  if  such 
return  be  false.  A  return  of  this  character  should  therefore  be  made 
■with  great  caution  ;  and  unless  the  case  i.s  quite  clear,  the  better  course 
will  be  for  him  to  retain  the  execution  until  the  return  day,  and  do  the 
best  he  can  to  make  the  money  thereon,  IJut  if  it  be  a  case  where  the 
defendant  is  seeking  to  evade  the  ]iayment  of  a  debt  by  screening  his 
property  from  execution,  or  otherwise,  there  can  be  no  objection  to 
making  a  speedy  return  to  the  execution,  at  the  request  of  the  plaiutifl', 
after  the  sherifl'has  made  all  ]iro]ter  cfl'orts  to  collect  the  money  from 
the  defendant ;  and  after  having  called  upon  the  defendant  with  the 
execution.  In  such  case  the  defendant  will  have  no  cause  of  complaint, 
for  he  will  have  had  an  opjiortunity  to  j)ay  ihe  execution,  and  the 
plaintilV  of  course  will  be  eslopjied  from  (|ueslioning  a  return  which  is 
made  at  his  instance.  But  in  all  such  cases,  the  sherill'  should  avoid 
giving  one  creditor  any  advantage  over  another,  by  makiiiLT  such  return  ; 
and  il^he  have  more  than  one  execution  similarly  siluate<l,  he  should 
return  them  altogether,  that  the  persons  interested  therein  may  be 
enabled  to  take  sucii  course  in  reference  thereto  as  they  may  be  advised. 

ClIAPTER   XXiy. 

OF  Tin:  LEW. 

5  425.  A  levy  upon  personal  proj)erty  is  the  act  of  taking  possession 
of,  attaching  or  seizing  it,  by  the  sherifl'  or  other  oHicer  under  and  by 
virtue  of  any  execution  he  may  hold  against  such  })roperty,  whereby 
the  lien  of  such  execution  upon  such  proj)erty  becomes  perfect,  and  the 
property  is  thereupon  deemed  to  be  in  the  custody  of  the  law. 

3  -1*^0.  The  duties  and  re8j)onsibililies  of  the  sheriir,  in  reference  to 
levies  upon  personal  property  under  an  execution,  are  an)ong.st  the 
most  important  and  delicate  that  he  is  called  ujion  to  discharge  in  civil 
matters.  When  he  receives  an  execution  against  j>roperty,  he  is  Intund 
to  make  reasonable  in<|uiry  to  ascertain  if  the  defendant  h;is  any 
property  in   his  county  subject  to  levy.     And   if  he  funis  him  in  the 

»  20  Wend.  022. 


01''  Tin;  ]j:\  V.  1 7:3 

possessioi)  of  any,  wlicllicr  it  i.s  chiinu-d  by  llic  dc(eii(Jaiit  that  it  has 
been  sold,  assigned,  mortgaged,  or  is  under  a  previous  levy,  it  is  the 
slieriir's  duty  to  make  a  levy  ;  and  il'  he  uei^lcct  to  do  so,  and  is  sued 
therefor,  it  throws  upon  him  the  burthen  of  showing  that  such  jjroperty 
was  not  in  truth  liable  to  the  execution.'  Wliile  on  the  other  hand,  if 
he  does  make  a  levy,  and  the  j)roperty  docs  not  belong  to  the  defendant ; 
or  if  it  has  been  duly  sold,  assigned,  mortgaged  or  levied  upon  by  other 
process,  lie  is  liable  to  the  owner  or  oflicer  holding  the  first  execution 
for  any  unwarranted  interference  wilh  it.  And  where  property  is 
subject  to  levy,  the  levy  thereon  must  be  so  made  that  the  same  will 
be  ^'ood  as  against  the  defendant,  bona  fide  jiurchasers  without  notice, 
and  subsequent- execution  creditors.  For  if  a  levy,  through  the  m-gli- 
gence  or  mistake  of  the  ofTicer,  is  so  made,  as  to  be  invalid  as  to  any 
partv,  whereby  the  rights  of  the  plaintifl'  under  the  execution  be  lost 
or  prejudiced,  the  sherid'  is  liable  to  him,  to  the  extent  of  the  damages 
sustained.  The  officer  shouKl  levy  upon  suflicient  property  to  satisfy 
the  execution,  if  the  defendant  have  so  much  ;  and  if  he  fails  to  do, 
whereby  the  full  amount  of  the  execution  is  not  collected,  he  will  be 
liable  to  the  plaintill'  for  the  damages  sustained.  But  if  the  oflicer 
shall  have  made  diligent  eflbrts  to  find  property  of  the  defendant 
whereon  to  levy,  it  will  be  a  good  defence  even  though  the  defendant 
should  have  property*^.  If  the  sheriff  makes  an  excessive  levy,  it  will 
be  an  abuse  of  his  powers,  and  he  will  be  liable  therefor  to  the  party 
aggrieved." 

^  127.  As  against  the  defendant  in  the  execution,  no  great  strictness 
or  form' will  be  necessary  in  making  a  levy  upon  persona]  property. 
Thus,  the  mere  entering  by  the  sherift'of  the  property  of  the  defendant, 
with  his  assent,  upon  the  execution  will  be  conclusive  upon  such 
defendant,  though  the  property  is  not  i)resent,  and  the  oflicer  does  not 
know  where  it  is.  But  such  levy  will  be  invalid  as  against  bona  fide 
purchasers,  without  notice  of  such  execution  and  levy,  arid  also  as 
against  subsequent  execution  creditors.'' 

(S  428.  What  will  constitute  a  valid  lew,  as  acainst  a  bona  fiffe 
purchaser,  or  a  subsequent  execution  debtor,  is  more  difficult  to  deter- 
mine, and  must  depend  upon  the  facts  and  circumstances  in  each 
particular  case.  It  may  be  said  however,  generally,  that  there  can  be 
no  valid  levy  upon  personal  property,  under  an  execution  as  against 
any  other  party  than  the  judgment  debtor,  unless  such  property  is 
present  and  subject  to  the  disposition  and  control  of  the  oflicer  seeking 
to  make  the  levy  f  and  unless  he  takes  possession  of  it,  or  exercises 

>  6  Pcnio,  203.  <  11  Woiul.  551.  s  IG  John.  287. 

1  Hall,  570.  19  WcmkI.  495,  3  Wciul.  450. 

2  Cow.  Tr.  <)lGOo,  4tli  cd.  9  Barb.  020.  11  Wend.  551. 

3  7  Wcud.  23G.     3  Hill,  215.  19  Wend.  495.    2  Hill,  CCG. 


17  1  (»F  Tin:  Li:vv. 

such  dominion  over  it  as  will  render  him  a  trespasser,  if  the  process 
un.ier  whicli  he  acts  is  not  a  protection  to  him.'  Hut  to  constitute  a 
valid  levy,  or  to  make  the  ofliccr  a  Ircsjjasscr  in  such  case,  it  is  not 
necessary  that  he  should  take  actual  possession  of,  or  touch  or  manually 
interfere  uith  the  property.  It  is  sufficient  in  either  case,  if  the 
properly  is  present,  thai  he  claims  to  exercise  control  over  il  by  virtue 
of  hid  writ,*  or  thai  he  makes  an  inventory  of  it,  or  threatens  to  remove 
it,  unless  a  tecciptor  is  given.'  Il  is  not  essential  to  the  valiility  of  a 
levy  that  the  olficer  should  leave  any  person  in  possession  of  the 
property  ;  or  that  lie  should  remove  the  same.*  He  may  leave  il  with 
ihe  defendant,  at  his  own  risk  ;  or  if  with  the  assent  or  hy  the  direction 
of  the  plaintirt'or  his  attorney,  at  the  risk  of  the  plaintilf;'  or  he  may 
leave  il  with  any  other  person  \vho  will  give  him  a  receipt  therefor, 
and  who  will  thereby  be  responsible  to  him  for  its  forthcoming.  Nor 
is  it  essential  that  an  inventory  should  be  made,'  though  il  is  highly 
important  for  the  security  of  the  officer  that  this  should  be  done.  A 
full  inventory,  made  at  the  time,  lessens  the  presumi)tion  of  fraud,  where 
the  properly  is  left  with  the  defendant,  and  it  may  be  used  by  the  officer 
to  identify  the  property  when  wrongfully  taken  from  him  by  another.' 
And  although  in  making  a  levy,  the  acts  of  the  shcrifl'  should  be  open 
and  unequijvocal,  and  he  should  assert  his  title  to  the  goods,  and  nothing 
should  be  done  to  cast  concealment  over  the  transaction,  yet  il  is  not 
essential  that  he  should  proclaim  a  levy  in  all  cases.'  Thus,  no  person 
may  be  present  when  the  levy  is  made,  and  he  is  not  bound  to  go  about 
and  proclaim  what  has  been  done.  So  it  may  be  deemed  advisable 
that  he  should  keep  the  knowledge  of  a  levy  from  the  defendant,  and 
other  persons,  until  he  can  have  time  to  lake  complete  possession  of 
the  property  ;  or  thai  he  may  be  able  to  reach  other  jjioperty  of  the 
defendant  before  he  has  lime  to  secrete  or  dispose  of  it,  or  before 
another  creditor  can  levy  upon  it  under  other  process.  And  hence, 
where  a  l*vy  is  actually  made  and  established,  the  omission  to  make 
public  avowal  of  it  will  not  affect  its  validity.'  Where  the  pro- 
l)#rly  is  present,  any  act  showing  an  intention  to  make  a  levy  is  suffi- 
cient. Thus  where  a  consUdjIe  having  an  execution,  went  to  a  field 
with  the  defendant,  where  certain  colts  were,  and  in  view,  and  made  a 
nolc  of  u  levy  on  them  on  the  execution,  it  was  held  good.'" 


«  3  ^'. 

8  7  Cow.  735. 

8  11  Woml.  n&i. 

1. 

*  VJ  Wtiid.  497. 

Il     "     IJf.. 

6  1 

:i      "      450. 

•  11  Wfixl.  Ml. 

0  ! 

»  10  I'i.k.  GUO. 

11     "      125. 

1 

•  ;'.  W.nd.  Wt. 

JO  2-3  Wuiid.  -lOO. 

»23Wn.'l 

2:5     "     4'.»2. 

M     "       1     ■ 

■1  ft  W<  n.l.  117. 

7  C.w.  TiH.  H  W.  ikI. 

010. 

lU     "      IGo. 

2f..t».  116.    C  iiarb. 

,  "y. 

OF  'I'lll',  Li:VY.  1 


(i) 


^•129.  Where  the  rtfl'iccr  ;^oes  lo  the  (IdeiKlanrs  I. due  with  ;in  exe- 
cution and  inlornis  the  defendant  of  it,  hut  undies  no  (hiidaration  lliat 
he  levies,  and  (hx-s  no  act  t<j  in(h<-alc  such  intention,  and  does  no  act 
to  enforce  the;  execution  for  eleven  months  thereafter,  then;  is  no  vidid 
levy  hy  him.'  Making  actual  levy  on  part  and  including  other  prop- 
erty in  the  inventory  not  in  vi(;\v  of  the  ollicer,  is  not  such  a  levy  upon 
the  latter  projicrty  as  will  secure  a  priority  in  competition  with  other 
executions  or  hona  fide  purchasers,'^  although  the  ])roperty  he  desig- 
nated by  the  defendant  and  entered  with  his  assent  upon  the  inventory.' 
Thus,  where  the  sherifT  sat  u])on  his  horse  in  the  road,  and  did  not  see 
the  property,  nor  know  where  it  was,  but  the  defendant  named  it  over 
to  him,  and  the  ollicer  made  a  memorandum  of  it,  it  was  held  that  the 
levy,  although  sufTicient  as  against  the  judgment  debtor,  was  not  an 
actual  levy  so  as  to  all'ect  persons  acquiring  title  subse(juently  derived 
from  the  judgment  debtor.^  And  where  a  deputy  holding  an  execu- 
tion went  with  the  defendant  to  a  field  to  levy,  and  a  memorandum  was 
made,  partly  l)y  the  deputy  and  partly  by  the  defendant,  of  the  prop- 
erty levied  on,  amongst  which  there  was  entered  by  tlie  defendant, 
"  five  head  of  horned  cattle,"  three  of  which  were  in  the  field  with  them, 
and  the  others,  a  yoke  of  oxen,  were  in  another  field  about  eighty  rods 
distant,  out  of  sight  of  the  deputy  by  reason  of  an  intervening  hill, 
and  were  not  seen  by  him,  and  such  cattle  were  allowed  to  remain  wiih 
the  defendant,  who  about  a  month  afterwards  sold  them  without 
informing  the  purchaser  of  the  levy,  it  was  held,  that  whatever  might 
be  the  efl'ect  of  such  a  levy  as  regarded  the  d'jfcndant,  it  was  not  a 
valid  levy  as  against  such  bona  fide  purchaser,  and  the  sheriil*  could  not 
recover  against  him  for  taking  such  oxen.^  And  wdiere  the  officer 
merely  seized  a  few  articles  outside  of  a  warehouse  and  procrlaimed 
a  levy  upon  the  goods  locked  up  in  the  store,  the  levy  was  held  good 
only  as  to  the  articles  seized.  The  officer  ought  in  such  case  to  have 
broke  into  the  store.'  And  the  officer  going  into  a  store  owned  by  a 
judgment  debtor,  and  looking  around,  but  not  taking  possession  of  the 
goods,  or  asserting  a  right  to  seize  them  by  act  or  word,  and  going  off' 
and  leaving  the  goods  in  the  possession  of  the  defendant,  who  continued 
to  sell  as  before,  though  he  afterwardjj  make  a  memorandum  of  a  lew 
and  put  it  in  the  execution,  will  not  constitute  a  valid  levy.' 

^5  130.  Where  the  execution  is  against  one  member  of  a  firm  for  his 
individual  debt,  the  sheritV  may  levy  upon,  take  possession  of  and 
remove  the  goods  of  the  firm.      In  such  case  he  seizes  all  the  prop- 

1  11  Wend.  125.  3  9  B.arl).  030.  -       <  9  l?arb.  030. 
a  19  Weud.  495.                             19  Wend.  495.  5  2  Hill,  600. 

20    "     41.  20      "      41.  6  10  .John.  287. 

2  Hill,  066.  2  nil),  006.  i  5  Deiiio,  198. 


17()  01'  I'lii:  Li:vv. 

erty  and  not  a  mnirly.^  Hul  though  iho  sherill'  may  seize  the  entire 
goods,  he  can  only  sell  the  moiety  or  share  of  the  (Icfendanl  therein, 
yet  ho  may  deliver  the  whole  u'ood.s,  sold  to  the  purt-hascr,  who  takes 
them  as  joint  tenant  with  tiu*  other  partners,  and  suhjecl  to  account 
for  the  full  value  in  favor  of  the  partnership  creditors.  If  the  shcrilF 
sells  the  wii  '  !s  ho  will  ho  a  trespasser.'     If  there  he  a  separate 

execution  ich  partner,  the  ollicer  seizes  the  whole  property 

and  sells  to^a^rt/icr  the  one  moiety  under  the  one  execution,  and  the 
other  moiety  un<ler  the  other.'  Ifupoii  a  levy  upon  partnership  j)rop- 
erty,  under  an  oxcrution  against  one  partner,  the  other  partners  receij)t 
the  propeuly.lt  is  no  answer  to  an  action  against  them  on  the  covenant 
that  the  properly  was  partnership  pro|)crly  and  had  been,  subsecjuent 
to  the  covenant,  applied  to  the  use  of  the  i>arluership.*  Where  there 
is  a  levy  by  one  execution,  on  the  interest  of  one  member  of  the  firm, 
and  another  execution  conies  to  the  sherilf's  hands  against  the  firm,  the 
latter  execution  must  he  paid  first ;  but  if  a  sale  has  been  had  on  the 
former  and  not  on  the  latter,  the  first  execution  takes  the  proceeds.' 
So  if  a  chattel  be  owned  in  common,  on  an  execution  against  one  part 
owner,  the  sherilf  can  only  sell  llie  debtor's  share.'  13ut  he  may  take 
possession  of  the  whole  properly,  and  deliver  it  to  the  purchaser.^ 
Where  the  sherifi'  seizes,  on  an  execution  against  one,  goods  owned  by 
two,  as  tenants  in  common,  and  the  latter  afterwards  purchases  the 
interest  of  his  co-tenant  therein,  the  sherift'  may  advertise  and  sell  the 
entire  interest  or  property  in  the  goods  without  makin'^  a  new  levy.* 
2  131.  If  the  execution  is  against  two  or  more  joinl  debtors,  where 
service  of  the  process  by  which  the  suit  was  commenced,  was  not 
made  upf»n  all  of  iho  defendants,  the  attorney  issuing  the  execution 
shall  indorse  thereon  the  names  of  such  of  the  defenilants  as  were  not 
served  with  the  process;  and  sh;ill  direct  in  such  indorsement  that 
such  execution  shall  not  l)c  served  upon  the  person  of  any  defendant 
whose  name  is  indorsed  thereon  ;  but  that  it  may  be  collecled  of  the 
personal  property  of  any  such  defendant,  owned  by  him  as  a  partner 
with  the  oilier  defendants  taken,  or  with  any  of  them.*  And  if  the 
shcrifi"  shall  levy  on  the  separate  property  of  one  not  so  served,  in 
violation  of  the  rlircctions  so  indorsed  on  the  writ,  the  goods  are  not 
in  the  cM'-iD.ly  of  the  law  so  as  to  preclude  a  righlful  levy  on  them  by 
another         u;..  .  '' 

1  ;,"      2  Jt.irh.  <•,.',:;  i:,  M. 

1''  I  -2.    Alk-n,  J51.       -  -^  ll.iil.    

12  ViL-U'l  l.il.  _'.  B  .}  Jiiii.  iCH. 

21     "     o<t5.  !•,  nso.  » 2 II.  s.  ;i77,  6C;n,  4. 

23      ••      O'JO.  IFim.lGH.        I.l.  lO-,,  V.".,  J,-lthc(l. 

21       "       3VJ.  in  2  Hill   -ni. 

2  Hill,  17.    .'{  Dcnio,  I2.y     ^.i»>.     i.,,.,    ^^Wond.:{^. 


OF  rm-:  m:vv.  177 

;5  'IH'i.  A  mcro  levy,  even  upon  siidicieiit  j»ersonal  properly  to  pay 
the  execution,  never  amounts  to  a  satisfaction  of  the  execution.  It  but 
suspends  the  other  remedies  to  the  plaintiir."  It  may  he  overreached 
by  some  other  hen,  or  ahanthuied  for  the  debtor's  henefil,  or  (h-foated 
by  his  misconduct,  and  then  such  levy  is  no  satisfaction  of  the  judg- 
ment or  execution.  There  can  be  no  satisfaction  of  the  execution 
where  the  defen<hml  has  neither  paid  the  debt  nor  lost  his  property  by 
the  levy.^  And  a  levy  by  a  creditor  of  one  member  of  an  insolvent 
firm,  u[)on  property  of  the  firm,  intrinsically  sufficient  to  satisfy  the 
debt,  is  not  a  satisfaction.^  But  if  the  goods  levied  on  hd  sold  efiectu- 
ally.  so  as  to  divest  the  debtor's  title,  the  execution  is  satisfied  to  the 
extent  of  the  proceeds.  And  if  they  are  injure«l,  destroyed  or  lost,  by 
the  misconduct  or  negligence  of  the  officer,  while  in  tlic  custody  of 
the  law,  the  debt  is  paid  to  the  extent  of  the  value  of  the  propertv  lost 
or  destroyed,  or  the  injury  done.'' 

§  433.  If  after  a  levy,  goods  are  replevied  by  a  third  person,  they 
cannot  be  levied  upon  again  as  the  defendant's  property,  though  he  ha.s 
been  permitted  to  repossess  them.*  But  if  the  person  re])levving  the 
floods  dies  pending  the  action,  it  abates,  and  the  sherifl'may  retake  the 
goods  and  sell  them  on  the  execution."  But  if  third  per.'^ons  have 
acquired  rights  under  the  replevin,  the  lien  of  the  execution  is  fronc. 
And  where  property  is  levied  on  and  sold  under  a  junior  execution, 
before  a  senior  one  is  levied,  it  cannot  be  again  levied  upon  and  sold 
under  the  senior  execution,  but  the  proceeds  must  be  applied  to  such 
senior  execution.''  Where  the  sheriflf  misconstrues  instructions  received 
from  a  plaintiff  in  an  execution,  and  relinquishes  a  levy,  he  mav,  even 
after  the  return  day  of  the  execution,  reta|ce  the  property,  though  in 
the  meantime  it  has  been  transferred  by  the  defendant  to  other  cred- 
itors for  preexisting  debts,  but  who  have  not  taken  possession  of  the 
same."  And  where  a  levy  has  been  made  through  the  instrumentality 
of  one  of  the  defendants,  by  inducing  the  sheritV  to  disregard  the 
instructions  given  by  the  plaintifl"s  attorney,  and  such  levy  is  likelv 
to  involve  the  plaintifl'in  a  litigation,  the  levy  maybe  released  and  tlie 
property  of  other  defendants  in  the  execution  levied  on.'  And  so  where 
an  officer  has  been  induced  to  relinquish  a  lew  by  one  claiming  the 
property  as  his  own,  the  sheriff  has  been  allowed,  even  after  a  return 
of  the  execution  nulla  bona,  to  have  such  return  stricken  out,  that  he 
might  retake  the  property  so  released,  or  to  bring  an  action  therefor. '° 
^  134.  A  valid  levy  by  the  sherifi',  or  a  deputy,  under  one  execution. 

'  1  Dciiio,  574.  <  1  Dcnio,  574.  7  2  Cora.  451. 

23  Wcnil.  490.  1  Sanrlf.  Ch.  195.  »  1  Woiul.  365. 

2  Hill,  329.  2  Com.  451.  9  22  Wend.  569. 

2  2  Cora.  451.  5  25  Wond.  614.  10  Ante,  643. 

3  7  Barb.  341.  s  6  Hill,  558. 

1  Cora.  163. 

24 


178  01-   TIIK  LKVV. 

b  a  good  and  sullicit-nl  levy  for  i\\\  llie  exomlions  llicn  in  llic  hands  of 
the  shcriir,  or  any  of  his  d<*puties,  the  return  day  of  which  has  not  then 
passcil ;  and  for  all  other  exeruliniis  which  may  come  to  the  hands  of 
such  shcrilVor  any  of  his  dc|ulics,  while  such  levy  continues.  And  it 
will  not  vary  the  rule  that  the  execution  under  which  the  first  levy 
was  made  has  hccomo  dormant  in  the  sheriff's  hands  as  against  subse- 
quent executions,  by  reason  of  instructions  to  delay,  and  that  the 
property  has  been  removed  beyond  the  reach  of  the  sheriff,  or  beyond 
the  state.'  But  if  the  first  levy  is  invalid,  it  docs  not  enure  to  the 
benefit  of  a  second  execution;  its  where  grass  growing  upon  the  land 
of  the  judgment  debtor  is  levied  on  under  one  execution,  neither  the 
execution  under  which  the  levy  is  made,  nor  any  subsequent  one 
can  hold  it,  even  after  the  grass  is  cut,  unless  it  be  so  cut  in  the  life 
time  of  such  execution.  But  if  the  return  day  of  such  first  execution 
is  passed,  and  the  grass  is  then  cut,  and  another  execution  is  received 
by  the  sheriff,  such  last  execution  will  hold.'  So  where  a  levy  has  been 
matle  on  the  separate  property  of  a  joint  debtor,  who  was  not  served 
with  process  for  the  commencement  of  the  action,  in  violation  of  the 
indorsement  upon  the  execution,  such  levy  will  not  enure  to  the  benefit 
of  another  execution  against  the  same  defendant. °  Where  there  is  a 
valid  levy  upon  one  execution,  the  sheriff  may  advertise  and  sell  upon 
all  the  executions  in  his  hand.  But  if  he  advertise  upon  one  only  he 
cannot  sell  upon  all.*  If  the  sheriff  levy  and  sell  gouds  under  the 
execution  last  delivered,  the  jiroperty  is  bound  by  the  sale,  and  a  levy 
cannot  be  made  on  the  same  j>ro)»erty  by  the  execution  first  delivered.' 
But  if  he  has  merely  seized  and  sold  under  the  last  execution,  and  has 
not  paid  over  the  moneys,  he  may  apj)ly  the  levy  or  the  proceeds  of 
the  sale  to  the  first  execution,'  otherwise  the  j)lainlilf  in  the  first  execu- 
tion has  his  remedy  against  the  slierifl?  And  if  the  sheriff  have  two 
executions,  and  on  one  the  return  day  is  past,  and  he  levies  under  it 
before  the  return  day  of  the  junior  ('xecutii»n,  he  cannot  appiv  the 
proceeds  of  the  sale  to  the  first  execution,  but  he  must  ajiply  them  to 
the  payment  of  the  last  one.  Where  two  executions  are  received  at 
the  s:iMie  time,  in  favor  ofdifferenl  defendanls.  and  lor  different  aniounts, 
they  are  not  to  be  paid  |)ro  rata,  out  of  the  proceeds  of"  the  sale  of 
personal  projKjrty.  but  dollar  for  dollar  until  the  lesser  one  is  paid,  and 
then  the  balmcc  is  to  be  applied  on  the  other.' 

21  i'i't.   Thoiijh  th.'  slieiilf  may,  if  he  chooses.  K-ave  pioperlv  levied 

'  17   '  "                                                    •  6  W.iisun,  ITC. 

f' '  «                     I.  'J  Com.  451. 

11  I  1  4  Cow.  401. 

1  1  ISfub.  012.    •                     1  e  Orali.itii  .s  IT.  804. 

'-;  ■  I.  1  Cow.  21!). 


OF  TflF,  LKVY.  179 

iipf»n  l)y  Him  with  the  dcfeiKliiiif,  it  will  he  :it  his  risk  if  it  is  lost  or 
destroyed,  unless  by  the  act  of  (lod,  or  of  the  ])uhh(*  enemies.  He 
should  therefore,  for  his  security  and  protection,  cause  the  j)roperty 
levied  on  to  he  removed,  or  a  jierson  to  be  put  in  possession.  Or,  if  it 
is  left  with  the  defendant,  he  should  obtain  the  plaintilV's  assent  thereto, 
or  take  a  receipt  for  the  i)ropcrty  of  some  one  or  more  responsible 
persons,  upon  the  inventory  made  by  him,  to  the  eflect  that  he  or  they 
have  received  the  property  from  the  sherifF,  who  has  levied  upon  the 
same,  and  that  they  will  return  surh  properly  to  the  sherifT,  and  every 
part  thereof,  on  demand,  or  pay  the  debt;  which  recei])!  will  be  a  valid 
agreement,  and  will  not  be  within  the  statute  against  taking  bonds  by 
color  of  ollicc.'  But  the  security  should  not  be  beyond  the  sheriflT'a 
own  legal  liability  for  the  goods  upon  the  execution,  or  it  may  be  void.* 
Notwithstanding  such  covenant,  the  sheriff  has  the  right  to  repossess 
himself  of  the  property,  whether  it  be  in  the  hands  of  the  receij>tor  or 
any  other  person,  either  to  sell  or  return  to  the  defendant  on  the  payment 
of  the  execution.'  If  the  goods  are  not  forthcoming,  on  demand  by  the 
-heriir,  the  undertaking  or  receipt,  if  it  be  for  the  whole  debt,  is  a  pay- 
ment of  the  judgment  and  execution,  and  satisfaction  of  the  debt,  even 
though  the  property  was  insufficient  to  pay  it.  In  such  case  the  officer 
cannot  seize  other  jiroperty  of  the  defendant ;  he  can  only  look  to  his 
receipt  or  undertaking,  and  it  will  be  immaterial  whether  he  has  been 
able  to  recover  anything  on  it  or  not.''  This  however,  is  to  be  under- 
stood as  ap|ilicable  only  to  a  case  where  the  defendant  has  been 
divested  of  his  property  by  such  levy,  and  not  fo  a  case  where  the 
defendant  has  repossessed  himself  of  his  property  again;  or  where  it 
was  not  his  properly;  or  it  was  taken  to  pay  some  previous  lien  upon 
it.  In  all  these  cases  the  levy  would  be  no  satisfaction  of  the  execu- 
tion ;  nor  would  his  taking  a  receipt  affect  the  condition  of  the  parties.* 
^  130.  The  same  rules  in  reference  to  breaking  into  dwellings  in  the 
case  of  arrests  in  civil  matters,  applies  to  the  making  a  levy  under 
an  execution  against  property."  And  what  constitutes  a  dwelling 
house,  and  what  the  outer  door,  is  the  same  in  both  eases.  The  officer 
cannot  break  the  outer  door  of  a  dwelling,  and  if  he  does  break  in,  he 
cannot  enter  to  levy.^  And  in  such  a  «'ase  even  a  visitor  at  the  house 
may  lawfully  resist  him.''  Nor  can  he  open  the  door,  though  it  be  only 
latched,  nor  enter  when  the  family  is  absent,  against  the  known  wishes 
of  the  occupant.'     And  this  protection  extends  to  the  same  persons  as 

•  23  Wend.  606.  *  12  John.  207.                         s  1  Hill,  r.^C,. 

21     "      605.  5  Auto,  ()^^'2.                            9  1  Uiil,  336. 

2  R.  S.  286,  t)59,  s  6  Hill,  6'J7. 

Id.  473,  <)4S,  4th  cd.  '  24  Wtml.  369. 

a  6  Hill,  588.  4  11111,437. 

s  23  Wcud.  606.   •  1  Uill,  doO. 


180  <^i'  Tin:  m:vv. 

in  the  case  of  arrest;'  and  even  to  n  truest  within  the  house,  unless  he 
has  gone  there  to  nvoid  process  held  hv  the  sherilV;  in  which  case,  the 
latter,  after  deniandini^  leave  to  j-nter,  n)ay  hreak  tlie  oviter  d«X)r.* 
But  the  oiliccr  may  enter  the  defendant's  house,  or  that  of  a  stranger, 
when  the  door  is  open,  and  seize  the  goods  of  the  defendant  found 
therein,  liable  to  execution,  by  night  or  l>y  day  ;  and  if  the  defendant's 
.goo<is  are  in  the  house  of  another,  who  refuses  to  deliver  them  after 
request,  the  sherilV  may  hreak  and  enter  into  the  house.^"  And  where 
a  levy  has  been  eommenced,  and  the  sherilV  left  the  house,  and  there 
was  a  stay  of  proceedings,  it  was  held  that  the  order  did  not  prohibit 
his  returning  the  next  day  and  making  his  inventory,  and  carrying  off 
the  goods  ;  and  that  being  denied  admittance,  he  had  the  right  to  break 
the  outer  door.*  He  may  break  open  a  store,  warehouse  or  barn,  or 
any  building  not  actually  occupied  as  a  dwelling,  nor  annexed  to  a 
dwelling  house,  or  forming  any  part  of  the  curtilage,  and  the  inner 
doors  of  a  dwelling  house,  trunks,  &c.,  and  when  necessary,  he  must 
do  so.'  Where  it  is  necessary  and  proper  to  break  open  outer  or  inner 
doors  or  boxes,  closets  or  drawers,  demand  that  they  be  opened  ought 
first  to  be  made. 

§  137.  When  the  sherifT  seizes  goods  on  the  defendant's  premises,  or 
those  of  another  party,  he  cannot  stay  upon  such  premises  above  a 
reasonable  time  to  make  his  inventory,  and  to  remove  the  goods,  without 
their  consent.'  But  if  they  are  seized  upon  the  defendant's  premises, 
and  the  oflicer  leaves  them  with  the  defendant,  he  may  sell  them  there, 
and  third  jtcrsons  may  rightfully  attend  as  bidders/  Where  growing 
crops  are  levied  on,  the  ollicer  may  sell  at  once,  or  he  may  allow  them 
to  grow  and  become  ripe  and  then  sell  them ;  and  in  either  case,  the 
oflicer  or  purchaser  will  have  the  right  to  take  care  of  them;  and  to  cut 
and  carry  them  away,  and  he  has  a  reasonable  time  in  which  to  do  it.' 
The  purchaser  succeeds  to  all  the  rights  of  the  defendant  in  respect  to 
the  crops,  ^yhether  the  defendant  owns  the  land  on  which  they  grew, 
or  occupies  it  as  lessee.' 

3  438.  When  i)roperty  is  levied  on,  the  sherilf  cannot  release  it  and 
return  nulla  bona,  except  at  the  risk  of  proving,  in  an  action  for  a  fal.se 
return,  that  the  property  was  not  subject  to  the  execution.  But  if  a 
third  person  claims  the  propferty,  or  the  sherilf  has  reason  to  doubt  that 
it  Ix-longs  to  the  defendant,  and  the  plaintilf  does  not  tender  an  adecpiate 
indemnity  to  the  sherilf.  if  the  latter  would  ])rotect  himsell"  against  an 

«  Antp,  <'/;.'',12,  Ac.  M    l>.  in..,  r,7l.  »  2  Jt>»iii.  418. 

5  1    Hill,  -I'M-  •  W;it.Nc.ii,  IW).  17  Jolm.  128. 

»  All<n,  l<i'».  K«-w.ll,  211. 

«  «;  Ilill,r»'-»7.  2J<.lm   -IIH. 

»  If,  J.,|in.  2H7.  17  John.  128. 

•  Wat*on,  174. 


OF  Till-:  LICVY.  lyl 

action  for  a  false  return,  lie  should  snninion  a  jury  to  try  tlio  title  of  the 
pntperty.  In  such  case  the  shcrill"  sununons  twelve  (|u:ih(ic(l  jurors,' 
and  gives  the  |)arties  notice  of  the  time  and  i)Iace  of  hearinf^,  and  he 
presides  and  swears  the  jurors  and  witnesses,  but  takes  no  |>art  in  the 
detcrtnination  of  the  (|Ucslion.  The  attentlancc  of  witnesses  is  enlbrced 
by  subpccna  out  (jf  the  court  from  whicth  the  execution  issues,  as  in 
other  cases.  The  jury,  after  hearing  the  testimony,  should  deliberate 
apart  from  all  otiier  i)ersons  as  in  other  cases,  and  should  make  and 
sign  an  intiuisition  stating  in  whom  they  find  the  proj^erty  to  be,  and 
the  sheriir  should  also  sign  su(di  in(|uisition.  If  they  find  the  title  not 
in  the  defendant,  the  sherilJ' is  justified  in  returning  the  execution  nulla 
bona,  unless  an  adequate  indemnity  is  tendered  to  him  by  the  plaintiff.* 
If  such  indemnity  is  furnished,  the  sherilfis  bound  to  j»roceed  notwith- 
standing the  finding  of  the  jury  ;^  that  is,  at  the  risk  of  showing,  if  he 
is  sued  for  a  false  return,  that  the  jiroperty  was  not  liable  to  the 
execution.  But  the  plaintiff  is  never  bound  to  tender  an  indemnity 
until  the  jury  has  jjassed  ujton  the  question  of  projicrty.*  If  by  such 
inqiiis\Uon*4Jk9w,.g'Yliperty  is  found  out  of  the  defendant,  and  no  adequate 
indemnity  is  tSfdered,  the  incjuisition  is  conclusive  in  favor  of  the  sheriff 
in  a|j  alihon  against  him  by  the  plaintiff  in  the  execution,  for  a  false 
r'':urn,  where  he  acts  in  good  faith.  But  where  the  action  is  by  the  real 
owner  of  the  goods,  though  the  inquisition  be  against  the  claimant, 
it  does  not  settle  the  right  of  property,  and  can  onb'  be  given  in  evidence 
by  the  shcrifrto  show  that  he  had  not  acted  maliciously,  and  by  way 
of  mitigating  damages.  It  is  not  a  justification  for  taking  a  stranger's 
goods,  though  the  jury  found  the  property  not  his.^ 

g  439.  Where  a  valid  levy  is  made,  and  the  officer  takes  the  goods 
into  his  possession,  he  is  bound  to  exercise  ordinary  diligence  in  taking 
care  of  them.  And  where  there  is  no  negligence  on  his  part,  he  is  not 
hable  for  losses  by  iheft,  robbery,  fire,  or  other  accident.®  But  if  he 
keeps  them  in  an  unsafe  place,  and  exposes  them  to  destruction,  he  acts 
contrary  to  his  duty,  and  will  be  liable  in  case  they  are  destroyed  ;^ 
and  if  he  negligently  injures  a  horse  levied  on  by  him,  it  is  a  satisfac- 
tion of  the  execution  to  the  extent  of  the  injury.*  He  must  be  dili- 
gent to  keep  the  goods,  but  he  is  not  an  insurer,  and  is  not  like  a 
common  carrier,  answerable  for  loss  by  fire.'  Where,  however,  the 
property  is  destroyed  or  lost,  in  order  to  excuse  himself  from  liability,  he 
is  required  to  give  clear  and  sati:>factory  evidence  that  it  was  not  occa- 
sioned by  his  neglect,  or  the  want  of  such  care  as  a  prudent  man 

»  Ante,  ^^170,  171,  164.  •<  8  Cow.  66.  ^  9  John.  385. 

»  8  John  185.  s  Qr.ih.im's  Pr.  371.  2  Com.  451. 

15"    147.  8  John.  185.  10  John.  98.    8  i  Denio, -574. 

10  "    98.     7  Wend.  236.         Alloii,  152.  M.  &  Scl.  175.  »  6  Hill,  591,  692,593. 

s  1  H.all,  505,  59G.  6  5  Hiii_  591.  5  pe^io,  693. 

8  Cow.  65.     7  Wend.  238.        6  John.  12.    9  John.  386. 


182  01-   Tin-:  LKVY. 

would  Inke  of  iiis  own  projKjrIy.  And  his  return  to  the  exocution  of 
facts  by  way  of  excuse  will  not  bo  suflirient.  They  must  bo  proved 
in  the  ordinary  way.'  IJul  where  he  leaves  the  property  with  the 
debtor,  whether  he  takes  a  receipt  or  n«»t,  he  will  not  be  exonerated 
from  liability  where  the  property  is  destroyed,  unless  it  is  so  destroyed 
by  the  act  of  God,  or  th  s  of  the  country  ;'  or  unless  it  was 

left  with  hiui  by  llie  plaii.     .  <lion,  or  where  the  plaintiir  selected 

the  receiptor  himself.'  When  the  shcrilV  parts  with  goods  levied  on, 
and  which  are  lial>le  to  the  execution,  he  is  answerable  for  the  value; 
or  if  sold,  for  the  amount  bid,  whether  he  has  received  it  or  not  of  the 
purchaser.*  But  a  plaintitV  is  not  bound  to  pay  his  own  bid,  but  it 
may  be  apj>lie(l  on  the  execution,  unless  there  is  a  surplus ;  and  w  hen 
there  is  no  dispute  as  to  whom  the  money  should  go,  the  slicriO  may 
deliver  the  property  bid  in  by  him,  and  if  the  judgment  is  reversed,  the 
officer  is  not  liable  to  the  other  creditors  for  the  money,  unless  there 
was  a  surjilus.*  But  if  there  is  such  disjuite,  the  sherill  should  rcluse  to 
receive  his  bid,  or  should  detain  the  pro])erty  till  paid  for.  If  however, 
he  does  deliver  it,  he  cannot  maintain  an  action  ntraiv  T*-'  -  Maintitl  lor 
iiis  bid.*     Where  ho  is  sued  for  not  paying  over  the  j.  ds  of  goods 

levied  on  or  soKI,  he  may  show  that  the  same  were  not  lia'c"'*  ♦o  the 
execution/  Or  that  there  had  been  a  recovery  had  against  him  by'iiie 
true  owner,  for  a  sum  exceeding  the  amount  made  on  the  execution  ; 
and  it  makes  no  ditTerence  that  he  has  been  indemnified  and  has  sued 
on  the  indemnity.'  And  where  he  returns  that  he  has  made  the  money 
and  is  ready  to  deliver  it  to  the  plaintill',  that  is  suHicient  to  <-harge  him 
with  it,  though  no  money  was  actually  received  by  him.*  Where  the 
sherifV  makes  a  levy,  and  the  property  is  removed  by  the  defendant^ 
the  court  will,  on  notice  to  the  defendant,  allow  a  new  execution  to  issue 
in  behalf  of  the  sheriff,  saving  the  rights  of  subsecpicnt  incunibrances 
attaching  after  the  removal  of  such  property.'" 

^  110.  An  actual  or  constructive"  levy  under  an  execution  is  neces- 
sary in  order  to  vest  the?  property  in  the  sheriff."  Where  such  levy  is 
made,  or  the  goods  and  chattels  of  a  debtor  arc  attached  by  an  orticer, 
they  are  in  the  custody  of  the  law  until  the  proper  time  for  a  sale, 
and  for  a  reasonable  time  alter  the  sale  to  allow  the  purchaser  to  re- 
move them  ;  and  during  this  time  they  are  beyond  the  reach  of  seizure 
by  any  <»thcr  execution,  or  attachment  or  distress,  even  for  taxes,  though 
ihcy  remain  in  the  possession  of  the  debtor,  the  jtarly  who  is  liable  to  pay 

I  6  P--     '"■'.  ■  "  '•'!!.  'jr,.  II  Auto,  <yVM. 

•  6  I  ...1.  LKlt.  u  1  ('.)!.  &  Cai.  Cos.  807. 
»1'..  I                                                .1   V. .  i„l.  201.  i:  Caiiic,  li;}. 

«  1»  John.  'J*i.  »  ^^  J"liii.  2»).  ''  JoJm.  l.tJ. 

»K>Jf.hn.  84.  "ly  Wend.  79.  12    "     4W. 

•  &  Cow.  890, 


OF  T[ii-:  i'i:uso.\AL  nioi'jniTY  siJiui:cr  to  ij:\  v.     i,s:j 

the  samo.'  J5y  llic  scixure,  the  ollicer  ac(|iiiies  a  special  jiropcrty  in 
the  nrnods,  and  may  niaintain  an  action  a;,Minbt  any  one  lor  takin^ 
them  away,  whether  he  Iclt  thcin  wiih  the  (Icfendant  or  had  taken  a 
rereiptor.''  The  sherilPs  indorsement  ol*  a  levy  upon  the  execution  is 
.sullicirnt  eviiK-nce,  \n\nrA  lacie,  to  prove  the  levy,  and  to  identify  the 
properly.^  And  if  such  indorsement  is  not  suflicient  in  this  respect, 
the  ollicer  may,  at  any  time  bclbro  the  execution  is  fded,  amend  such 
indors'jmL'Ut  oi'  levy  so  as  to  specify  with  certainty  the  pro|)erty  levied 
on.*  Hut  if  the  levy  is  not  a  valid  levy,  by  reason  of  any  irregularity 
therein  ;'  or  the  projterly  is  not  subject  to  levy  at  the  lime,  as  grass, 
or  fruit,  or  trees  growing ;«  or  where  the  levy  is  ui)on  the  sole  prop- 
erty of  a  joint  debtor,  who  was  not  served,  contrary  to  the  instruc- 
tions indorsed  on  the  execQtion,  the  property  is  not  in  the  custody  of 
the  law  so  as  to  prevent  a  regular  levy  under  another  execution.''  And 
so  where  an  execution  has  become  dormant  in  the  hands  of  the  late 
sherilV,  or  other  ollicer,  the  new  sherilT  or  any  other  oflicer  having  an 
execution  against  the  same  defendant  may  levy  on  such  property." 

i5  '111.  Where  the  execution  is  against  the  goods  and  chattels,  lands 
and  tenements  of  the  debtor,  all  the  goods  and  chattels  or  personal  and 
moveable  property  of  the  debtor,  in  the  county  liable  to  execution, 
must  first  be  levied  on  and  sold  before  the  real  estate  of  such  debtor 
can  be  advertised  or  sold.  And  an  execution  issued  by  the  county 
clerk  upon  a  transcript  of  a  judgment  rendered  by  a  justice  of  the 
peace,  for  the  sum  of  twenty-five  dollars  or  less,  must  be  collected  out 
of  the  personal  property  of  the  defendant,  for  it  is  not  a  lien  upon  his 
real  estate,  any  more  than  a  justice's  execution  in  the  hands  of  a  con- 
stable ;  and  when  the  personal  property  of  the  defendant  is  exhausted 
before  satisfying  such  former  execution,  it  must  be  returned  nulla  bona, 
for  the  residue,  as  in  the  latter  case,  though  the  defendant  may  have 
abundant  real  estate.* 

CHAPTER  XXV. 

OF  THE  PERSONAL  mopERTi'  SUIUECT  TO  LEW. 

,§  11'2.  Every  thing  of  a  pers'>nal  and  tangible  nature  belonginfr  to 
the  defendant,  (except  choses  in  action,'"  and  the  articles  exem|)t  by 
law  from  levy  and  sale  on  execution,  to   be  hereinafter  mentioned, 

'  Scwcll,  2 13.  a  Allen,  1  IS.  »  Grah.im's  Pr.  383. 

1  Hill,  o5;i.     .1  Hill,  IGl.  8  10  Wend.  1G5.  6  Cow.  300 

2  Uill,  204.  10  Johu.  131.        8      "       ^47.  7     "     5G0. 
17  John.  128.  *S  Wend.   147.  5  Dcnio,  108. 
17  Wend.  358.  s  5  Donio,  108.  9  Code,  (fy.i. 

20      "      41.  6  1  Barb.  642.  lo  Cow.  Tr.  ^1503,  4ih  cd. 

10  Peters,  404.  7  2  Uill,  204.  3  Sandf.  002. 

Cow.  Tr.  ^1503,  4th  cd. 


184      OF  TIIK  PiiRSONAL  PROPERTY  SllBJECT  To  Li:VV. 

and  the  rights  of  a  tcnnut  at  will  or  hy  sufTiaii'-e  in  land.')  may  be 
levied  on  and  sold  as  personal  property  or  "goods  and  chattels."'  This 
includes  everv  kind  of  proiliire  raised  annually  hy  lahor,  whether  it 
is  growintjor  has  been  gathered.'  If  however,  the  Innd  on  which  the 
crops  are  growing,  is  mortgage*!  and  the  mortgage  is  foreclosed  and  a 
sale  thereon  is  had.  before  they  are  gathered,  they  go  to  the  purchaser 
of  the  Innd.  whether  sown  by  the  mortgagor  or  his  lessee.*  And  where 
the  defendant  has  been  ejected  from  land,  crops  growing  upon  it  are 
not  liable  to  an  execution  against  him,  but  go  to  the  owner.'  As  a 
general  rule,  no  lew  can  be  made  upon  the  annual  produce  of  the  earth, 
as  grass  growing,  or  fruit  not  gathered,  where  the  execution  debtor  is 
the  owner  of  the  land.  They  are  jmrcel  of  the  reality  and  must  be 
sold  as  such.'  And  a  levy  upon  trees,  fruit  or  grass,  xuider  such  cir- 
cumstances, although  they  should  be  turned  out  by  the  debtor  to  the 
officer,  would  be  void.^  But  if  the  defendant  is  only  a  tenant  upon 
the  land  on  which  they  are  growing,  then  such  fruit  or  grass  may  be 
levied  on  and  sold  under  execution."  And  in  certain  cases,  grass 
growing,  and  even  trees  not  severed,  may  become  personal  j>roperty, 
and  be  liable  as  such  to  levy  and  sale  on  execution,  as  where  the 
owner  of  the  land  in  fee,  by  a  valid  conveyance  sells  the  trees  or 
grass ;  or  where  he  sells  the  land,  reserving  to  himself  the  trees  or 
grass.*  But  a  chattel  mortgage  on  trees  or  grass  growing  on  land,  is 
not  such  a  severance  until  forfeiture :  and  tlien,  the  trees  and  grass  so 
mortgaged  belong  to  the  mortgagee  and  not  to  the  mortgagor,  and  may 
be  sold  on  execution  against  the  former.'"  Whiskey  made  of  the  debt- 
or's corn  bv  one  who  took  it  wrongfully,  may  be  seized  and  sold  on 
execution  against  the  debtor.  But  it  is  otherwise  if  it  was  so  matui- 
faclured  bv  an  innocent  purchaser."  Also  current  gold  or  silver  coin, 
bank  bills  or  evidences  of  debt  issued  by  any  moneyed  corporation,  or 
by  the  government  of  liic  I'nit'.'d  St.ites,  and  circulated  as  money.*' 
Coods  of  the  testator  in  the  hands  of  the  executor  may  be  taken  on 
cxe<!ution  against  the  testator  duly  issued. '^  And  if  an  executrix  use 
the  goods  of  the  testator  as  her  own,  and  afterwards  marry,  and  then 
treat  them  as  the  goods  of  her  husband,  she  shall  not  be  allowed  to 
ob'*-ct  \i>  lliclr  b.iir'  takiu  on  cxeciitioii  for  her  liusbaiid's  debt.'*   (loods 

•  1   1  I,  «  h  W.  iici.  .',ht.  B  1  liciiict,  r.KO. 

-!  A  4ll«  <-'J-  1  n.irli.  (Ml.  (;i:{.  9  Joint,  ins. 

-  1-  -  •2l)iui»,  171.  -  »  1  H;ir»..  512. 

U     "  f,  IJ.irl).  .{70.  '0  3  IJarJ).  512. 

•  1  Cow.  :.  1"  9  W.it.Mon,  IKO.  n  .'ICoin.  87'.t. 

OJolin.  112  •  2  Joliii.  118.                                  4  iKnio,  .{.TJ 

2      "     418.  y     ••      112,                               (•,11111,425. 

17     "     851.  17     "      128.  1^211   S.  . •»(•.«,  <';)\;  18,  19. 

»  12  John,  220,  3W).  »  C»w.  3U.                                 M.  r.l.j.  ^v)l,s,  lit,  Uh  cd. 

17     •'     128.  1  n<nio,  550.  »  W.ilson,  175. 

1  Cow.  240.     Allen,  157.  ^  I  Unrb.  542.  '<  Tidd'H,  Vr.  1051. 


OF  Till':  PKRSOXAL  IMlOlMCiriT  SUIMIXJT  TO  I.i:VV.     185 

purcliasxd  hy  the  wile  while  livinj^  with  licr  liushaiul,  for  lier  busiiicsK 
of  inilliiier,  which  she  ran-icd  on,  have  been  helil  hahlc  for  the  tiebts 
of  the  husband.'  And  it  has  also  been  held  that  where  the  rnatcrials 
of  ani'\vspaj)er  piiulinr^cstabhshnient  have  been  levied  on,  the  subscrip- 
tion hst  might  be  inchided.'* 

§  443.  Certain  articles  of  a  personal  nature,  ^vhen  annexed  to  the 
freehold,  and  which  are  then  designated  as  "  fixtures,"  are,  under 
certain  cir<-umstancei;,  deemed  a  part  of  the  realty,  and  can  only  be 
levied  on  and  sold  under  an  execution  with,  and  as  a  part  of  the  land 
to  which  they  are  so  attached.  Under  other  circum.stanccs  they  are 
deemed  to  be  personal  properly,  and  may  be  levied  on  and  sold  as  such. 
It  becomes  very  important  therefore,  that  the  officer  holding  an  execu- 
tion should  be  enabled  to  determine  with  certainty,  what  are,  and  whai 
are  not,  fixtures  in  any  particular  case  ;  and  when  they  may  b<^  sold  ns- 
personal  property. 

^  444,  The  distinction  between  what  is  a  fixture  and  wliat  is  not. 
has  never  been  defined  with  any  reasonable  degree  of  certainty ;  and 
perhaps  no  sufficient  or  satisfactory  practical  rule  can  be  given  which 
will  be  apjilicable  to  all  cases.  It  may  be  said  generally,  however,  that 
a  fixture  is  something  of  a  personal  nature,  annexed  to  the  freehold, 
essential  to  the  business  or  purpose  of  the  erection,  and  permanently 
or  constantly  attached  to  it  in  some  way ;  at  least  it  must  be  mechani- 
cally fitted  so  as  in  ordinary  understanding  to  make  a  part  of  the 
building  itself.^  To  constitute  a  fixture,  there  must  be  such  an  annex- 
ation as  to  render  severance  impossible  without  injury  to  the  freehold.'* 
There  are  certain  articles  however,  which,  though  they  are  never 
actually  affixed  to  the  freehold,  are  from  'their  character  considered 
a  part  thereof,  and  pass  with  the  inheritance,  as  the  key  of  tlie  house, 
deer  in  a  park,  fish  in  a  pond,  and  doves  in  a  dove  house,  an  ordinary 
Virginia  fence,  altiiough  it  may  be  temporarily  laid  up  in  piles,  and 
manure  in  a  barn  yard.' 

^  445.  The  following  articles,  though  they  may  be  aflixed  to  the 
freehold,  are  not  regarded  as  fixtures,  and  may  be  levied  on  and  sold, 
whether  owned  by  the  owner  of  the  land  or  by  a  tenant  thereof: 
Machinery,®  if  not  attached,''  or  though  attached,  if  it  may  be  removed 
without  injury  to  the  building  or  the  machinery  ;^  carding  machines  in 
a  woolen  factory  not#ttached  to  the  building,  but  connected  merelv 
by  the  bands ;'  spinning  frames  and  carding  machines  in  a  mill,  the 
former  fastened  to  the  upper  floor  by  upright  pieces  and  havin"-  cleats 

1  7  Eow.  Tr.  R.  105.  *  10  Barb.  1G4.  «  11  Venn.  4.0.3. 

2  2  Cow.  Tr.  512.  9  Conn.  52.  ^  20  Wend.  636. 

3  20  Wcn.l.  G3G.  s  20  Wend.  636.  s  9  Conn.  63. 

10  Barb.  102.  15    "     171.  »  11  Mass.  352. 

2  Uill,  142. 

25 


18G    OF  THK  ri'.RSONAI.  PRoPI'.HTV  SUn.li:("P  T(^  LHVY. 

nailed  to  the  floor  nrounil  the  ffct.  and  llic  latter  fastened  to  the  floor 
by  wooden  pins  ;•  a  carding  machine  situated  iit  a  bulMint;  erected 
for  the  pur|Hise  of  carrvinii  on  rardin?.  roady  to  be  put  in  rjpcration, 
anil  standintj  on  the  flour  in  its  usual  |>lact'  of  operation,  hut  not  fastened 
to  the  building,  is  not  a  fixture,  but  is  subject  to  a  justice's  execution. 
Machinery  put  in  a  buildinir  after  its  erection  f«»r  the  purpose  of  trade, 
founded  on  tin»l)ers  betldcd  in  the  earth,  and  so  attached  to  the  building 
as  to  be  capable  of  being  removed  without  injury,  is  liable  to  an 
execution  as  jiersonal  property.'  *  Mafhincry  for  making  cotton  yarn 
and  twine  in  a  cotton  mill  standing  on  the  floor,  over  apertures  for  the 
passage  of  leather  belts  by  which  it  was  moved,  and  was  not  fastened 
to  the  building  exeejil  in  some  cases  by  cleats  fastened  to  the  floor  to 
make  it  level,  and  each  machine  being  <'apable  of  removal  without 
injury  to  the  building.^  A  heater  used  in  a  tannery,  placed  in  a  vat. 
which  latter  is  deta^-hed  from  the  building,  is  not  a  fixture  even  il 
put  up  by  the  owner  of  the  land/  Ami  so  of  a  bark  mill,  aflixed  to  the 
soil;*  and  a  still  in  a  still  room.  A  stove  in  a  house, which  leads  by  a 
pipe  into  a  chimney  from  the  floor,  though  there  is  no  fire  i)lace  in  the 
house,  is  not  a  fixture.*  CJrowing  crojis  of  all  kinds,  excej*!  grass  or 
trees  growing,  and  fruit  not  gathered.''  J  Jut  if  the  land  is  occujncd  by  a 
tenant,  and  the  grass  or  fruit  lielongs  to  him,  it  is  personal  proi>erty.' 

(3  1 10.  But  the  following  articles  of  personal  projterty  have  been  held 
to  be  fixtures,  when  put  up  and  owned  by  the  owner  of  the  land,  and 
of  course,  cannot  be  sold  on  execution  against  such  owner,  as  personal 
properlv,  separate  from  the  land  to  which  they  arc  attached :  The 
water  wheel,  stones,  even  while  removed  for  the  purpose  of  being 
picked,  running  gear,  bolting  api>araltis  and  ma<-hinery  of  agrisl  mill ;' 
the  engine  of  a  steam  saw  mill;'"  a  clap  board  and  shingle  machine 
fastened  to  a  saw  mill  to  be  there  used;"  the  rolls  of  an  iron  rolling 
mill,  as  well  as  iron  i)lates  with  which  the  flour  is  covered,  and  whi<-h 
are  indispensable  parts  of  it,  though  not  manufactured  for  the  purpose  ;" 
a  steam  engine  and  boilers,  and  machinery  adapted  to  be  moved  by 
such  engine  by  means  of  connecting  banils  and  gearing  which  are 
j)larc<l  in  a  building  designed  for  the  pur|»osc  of  manufacturing  steam 
engines  and  other  heavy  iron  work  ;"  a  steam  engine  with  all  its  fixtures 
used  to  drive  a  bark  mill  in  a  tannery,  and  also  the  bark  mill ;  a  cotton 
gin  in  a  gin  house  on  a  plantation,  attached  by  g^rs  ;  a  kettle  in  a  fulling 

•  1:  7  2Jo1iii.  418.  >o;nVaUi«,  110. 
*!,  I  11  "  lOH.  7  "  1<»0. 
»IOi;.i:l.    I'i7.                                  1  iJ.irb.  512.                             O  If)  Shi-p- ''••■'■ 

«7  ('uw.  :rji.  ii    "    fiia.  Hi    "    115. 

»  6  John.  5.  •  1  P.niu,  580.  '«  W.  &  Sorgt.  1 1'.',  3'K). 

•  2-1  Wc-iid.  101.  1  <;..m.  iK).  «J  Mil.  800. 

•  H)  I'lUKf,  158. 
20  Wend.  639. 


OF  TiiK  ri:iisoNAL  riioriiRTY  .si;i}jj:cT  to  lhvy.    187 

mill,  set  in  brick;'  a  jxjtasli  ketlk;  set  in  an  arch  of  masonry  with  a 
chimney,  thonu;h  the  arches  are  jdaced  on  a  |>latrorni  anrl  fastened  to 
the  l)uil(iings  ;  hnt  small  kettles  nni  fixfd  in  any  way,  though  necessary 
for  the  n.-jc  oCthc  a-shcry  are  not  ;'^  where  a  house  was  hnilt  for  a  dis- 
tillery, the  still  set  in  hrick  work  and  let  into  the  ground,  the  pumps, 
cisterns,  ir«»n  grating,  door,  distillery  and  horso  mills,  were  held  a  part 
thereof,  hut  not  the  joists,  vats,  buckets,  pickets  and  faucets;^  a  dye 
house  and  kettles  secured  in  a  brick  arch  ;*  the  kettles  set  in  brick 
work  in  a  fulling  mill;  a  copper  kettle  in  a  brew  house;  also  all  fences 
whether  accidentally  or  temporarily  detached,  unless  it  is  the  intent 
of  the  owner  to  divert  them  ;'  ho]i  poles  used  on  the  farm,  though  taken 
down  to  gather  the  liops  and  piled  in  the  yard,  with  the  intention- of 
being  again  useil  in  the  proper  season  f  growing  grass,  fruit  and  trees  ;^ 
a  strawberry  bed  in  full  bearing,  though  purchased  from  a  former  tenant ; 
and  a  border  of  box,  which  is  not  grown  for  sale  by  a  gardener;  manure 
in  the  ordinary  course  of  accumulation  on  the  farm,  whether  made  by 
the  owner  of  the  land  or  a  tenant,  and  whether  in  heaps  or  scattered 
about  the  farm.*  The  permanent  stage  of  a  theatre  has  also  been  held 
to  be  a  fixture,  but  not  the  movable  scenery  and  flying  stages.* 

11-3  in.  The  stones  of  a  grist  mill,  though  removed  for  the  purpose  of 
being  picked,"  are  still  fixtures;  and  so  of  saws  in  a  mill,  and  where  there 
are  two  sets,  the  one  may  be  at  work  while  the  other  is  sharpening,  and 
yet  both  are  fixtures;"  and  so  if  a  copper,  which  is  a  fixture,  has 
another  cover,  that  is  a  fixture  also;'^  so  where  the  stones  and  irons 
of  a  grist  mill  were  accidentally  detached  by  a  flood,  carrying  away 
the  main  body  of  the  mill,  they  were  still  holden  to  be  a  part  of  the 
realty,  and  not  seizable  on  execution.'-  So  where  a  tenant  severs 
machinery  in  a  mill,  demised  to  him  for  a  term  of  years,  without  the 
landlord's  consent,  it  cannot  be  seized  on  execution  against  the  tenant.'* 

^  418.  Rut  all  fixtures,  Iniildings  and  erections,  though  annexed  to  the 
freehold,  if  put  up  by  a  tenant  for  the  purpose  of  trade,  or  manufac- 
turing or  agricultural  purposes,  may  be  removed  by  him,  and  where  he 
may  remove  them,  they  may  be  levied  on  by  execution  against  such 
tenant.'^  Thus  he  has  the  right  to  remove  all  furnaces  or  vats,  or 
coppers  of  a  soap  boiler;  kettles  or  boiler  of  a  tannery,  put  up  with 
brick  work  in  mortar;  stills  set  up  in  furnaces  for  making  whiskey; 

'  15  Mass.  159.  s  15  Wond.  169.  i3  1  Pciiio,  01.  20  Wend  638 

-  6  Co\v.  605.                                  2  Hill,  142.  10  B.irl).  500 

'  Ilar.  &  J.  289.  »  20  Wend.  0-36.  1  Hill.  Ab.  15,  <\87. 

*  19  Pick.  814.  «o  20  Wend.  640.  2  Kent.  Com.  343 
5  2  Hill,  142.  "  Id.  653.  Watson,  179. 

«  1  Kenian,  123.  '»  Id.  653.  1  Barb  547 

•  1  Barb.  542.  '3  6  Grenl.  427. 
2     "     613.                            X  Allen,  160. 


188    OF  THE  PERSONAL  PROrEIlTY  SL'nJECT  TO  LEVY. 

salt  pans  for  making  sail  at  salt  springs;  macljinery  in  breweries, 
colleries ;  mills,  as  sleani  rni^incs,  cider  mills  and  tlie  like.  IJuildings 
for  trade,  as  a  varnish  house  ;  sheds,  called  dutch  barns,  loiined  of 
uprights  rising  from  a  foundation  of  brick  work ;  a  wooden  dwelling 
house,  with  a  cellar  of  stone  or  brick,  and  a  brick  chimney  erected  by 
him  for  the  business  of  a  dair}"fiian  and  the  residence  of  those  cn;ia2;ed 
in  it,  and  in  part  improved  for  carrying  on  his  trade  of  a  carpi-nicr.' 
A  ciii.r  mill  and  press,  though  fixed  to  the  soil,  if  erected  by  a  tenant 
for  his  use.'  So  too,  he  may  remove  and  the  same  are  liable  to  execu- 
tion, w  here  the  removal  will  not  place  the  freehold  in  a  woree  condition 
than  when  the  tenant  tot>k  possession,  if  not  exempt  from  levy  on 
execution  by  statute,  all  fixtures  put  up  as  furniture,  such  as  hangings, 
tapestry,  beds  fastened  to  the  ceiling,  blinds,  chimney  glasses,  chimney 
pieces,  clock  cases,  coflee  mills,  looking  glasses,  pier  glasses,  pictures, 
shelves,  cabinets,  chimney  backs,  cupboards,  desks  and  drawers,  frames, 
gas  pipes,  grates,  iron  chests  and  iron  ovens,  iron  safes,  jacks,  lamps, 
pumps,  ranges,  sinks,  turret  clocks,  wainscoats  fixed  by  screws,  window 
sashes,  not  being  bedded  into  the  frames,  but  merely  fastened  by  laths, 
and  nailed  across  frames,  and  curtains.^  A  building  erected  on  the 
land  of  another,  with  his  assent,  is  personal  property,  and  may  be  sold 
as  such.*  Shrubs  and  trees  raised  by  a  nurseryman,  on  lands  held 
by  him  as  .tenant.'  Rails  built  into  a  fence  by  a  tenant,  under  an 
agreement  that  he  may  remove  them,  are,  as  between  him  and  the 
owner  personal  projierty. 

5  1  iD.  Where  goods  or  chattels  shall  be  pledged  for  the  payment  of 
money,  or  the  j)erformance  of  any  contract  or  agreement,  the  right 
and  interest  in  such  goods,  of  the  jierson  making  such  i)le(lge,  may  be 
sold  on  execution  against  him,  and  the  purchaser  shall  accjuire  all  the 
right  and  interest  of  the  defendant,  and  shall  be  entitled  to  the  i>ossession 
of  such  gocnls  and  chattels,  on  com]»lying  with  the  terms  and  conditions 
of  the  pledge."  In  such  case  the  sherilf  may  seize  the  property  and 
hold  it  until  the  sale,  but  he  must  only  sell  the.  defendant's  interest 
therein,  and  if  he  assume  to  sell  the  goods  absolutely,  he  will  be  liable 
as  a  trespasser ;'' and  on  the  sale  he  must  redeliver  such  property  to 
the  pledgee,  to  whom  the  pur<;haser  must  look.  His  title  is  subject  to 
the  lien  of  the  former.*  Goods  pasvned  may  be  seized  and  sold,  subject 
to  the  lien  of  the  pawnee.*  So  the  interest  of  a  lessee  of  personal 
properly  may  be  sold  on  execution,  and  in  such  case  the  purchaser 
stands  in  the  situation  of  the  lessee."     IJiit  where  bv  the  terms  of  the 


1  1  Hill.  Al>.  14. 

•  1  Hill.  Ab.  14. 

»  Ti.ldH-  Pr.  1041 

»  20  .T"hn  '_»«' 

•  'i  R  8.  306,  <>20. 

10  2  Cow.  6  l.l. 

JS- 

M  '•■ll.tyjd,  llh  cd. 

7  Cow.  7r)2. 

-' 

1  !<•  W.h.l.   ■.•/M. 

3  Wciul.  600. 

« riiiii.  I.- 

•0  Hill,  JHI. 

1  M^-l.  7 

1  Cum.  20. 

or  Tiii«:  rioKSONAL  puoi'krty  subji^ct  to  LHVV.    189 

K'ase,  the  property  is  to  Itc  kept  upon  particular  premises  and  not 
removed,  a  removal  in  violation  lherei>r,  works  a  Ibrfeilun;  dI'  the  lease, 
and  the  lessee  has  no  interest  that  can  be  nmde  subject  U)  levy  and 
sale. ' 

^  -450.  Where  goods  and  chattels  owned  by  the  defendant  in  the 
execution  are  mortgaged  by  him,  if,  by  the  terms  of  the  mortgage,  ho 
has  the  right  of  possession  of  the  property  for  a  definite  jjeriod,  as 
against  the  mortgagee,  his  interest  in  such  property  may  be  levied  on 
and  sold,  at  anytime  before  forfeiture,  or  before  the  right  of  jmssession 
of  the  property  accrues  to  the  mortgagee."  But  if  by  the  terms  of  the 
mortgage  the  mortgagee  has  the  right  of  possession  at  any  time,  or  he 
has  reduced  the  property  to  possession,  the  mortgagor  has  no  interest 
therein,  but  the  equity  of  redemption,  which  is  not  alone  and  unaccom- 
panied by  the  right  of  possession,  the  sul)ject  of  levy  and  sale  upon 
execution.^  And  after  default  in  the  condition  of  the  mortgage,  the 
mortgagor  has  no  interest  in  the  mortgaged  property,  subject  to  execu- 
tion, for  the  title  has  become  absolute  in  the  mortgagee.  If  there  is  no 
time  of  payment  specified  in  the  mortgage,  or  the  mortgage  provides 
for  an  impossible  time  of  payment,  or  a  time  anterior  to  its  date,  in 
either  case  it  is  payable  immediately,  and  the  mortgagee's  title  is 
absolute  at  law.^  Where  the  defendant  is  the  mortgagee  of  personal 
property,  it  may  be  sold  upon  an  execution  against  him  after  forfeiture, 
although  the  i)roperty  still  remains  in  the  hands  of  the  mortga"for.^ 

g  451.  But  to  render  a  mortgage  a  valid  lien  upon  personal  property, 
as  against  a  judgment  creditor,  it  must  be  for  a  valid  consideration, 
and  be  upon  property  the  mortgagor  then  owns,  and  not  upon  property 
to  be  subsequently  acquired.*  And  the  following  provisions  must  be 
strictly  complied  with:  Every  mortgage  or  conveyance  intended  to 
operate  as  a  conveyance  of  goods  and  chattels  hereafter  made,  which 
shall  not  be  accompanied  by  an  immediate  delivery,  and  be  followed 
by  an  actual  and  continued  chani^c  of  possession  of  the  thinrrs  mort- 
gaged, (and  the  delivery  of  the  property  to  the  mortgagor  to  take  care 
of  as  agent  of  the  mortgagee,  is  not  such  a  change  of  possession,^)  shall 
be  absolutely  void  as  against  the  creditors  of  the  mortgagor,  and  as 
against  subsequent  purchasers  and  mortgagees  in  good  faith,  unless  the 
mortgage  or  a  true  copy  thereof  shall  be  filed*  with  the  clerk  of  the 
town  or  city  of  this  state  where  the  mortgagor,  if  a  resident  of  this 

'  3  Wend.  500.  3  1  Com.  295.  s  9  Wend.  261. 

2  -1  Cow.  467.     3  Wend.  500.       3  Wend.  500.  s  4  Com  581 

8  Wend.  347.    10"     320.   <  2  Wend.  5%.    9  Wend.  81.  7  2  Hill,  628 

17  Wend.  53.    2  Hill,  328.        12    "     61.     1  Hill,  473.  8  2  R.  S.  318,  ^9,  4th  ed. 

4  Hill,  271.     1  Com.  295.        2  Denio,  170.  Laws  1833,  ch.  270,  ^1. 

1  Barb.  542.  3  Sandf.  607. 

1  Keruan,  Carnlcy  v.  Hull. 


VM  np  Tin:  ri:usoNAL  imiopkhtv  sunji:cr  to  lhvy. 

state,  shall  reside  at  the  time  of  the  execution  thereof;  and  if  not  a 
resilient,  then  with  the  clerk  of  the  eity  or  town  where  the  |>r(»j)orty 
so  niortgnged  shall  ho  at  the  time  of  the  execution  of  such  instrument. 
In  the  city  of  New  York,  such  instrument  shall  be  filed  in  the  otlice 
of  the  register  of  said  city,  and  in  the  several  cities  in  this  state,  other 
than  the  city  of  New  York,  and  in  the  several  towns  in  this  state,  in 
which  a  county  clerk's  <«nice  is  kept,  in  such  ollico;  and  the  clerk  with 
whom  the  same  is  fdcd  shall  indorse  thereon  the  time  of  the  filing 
thereof.'  If  any  such  mortgage  be  filed  in  any  diilerent  ollice  from  that 
designalotl,  the  mortgage  will  bo  void.'  And  every  such  mortgage 
shall  cease  to  be  valid  as  against  the  creditors  of  the  person  making 
the  same,  or  against  subsecpient  purchasers  or  mortgagees  in  good  faith, 
aftor  the  exj)iration  of  one  year  from  the  filing  tluretd",  unless  within 
thirty  days  next  preceding  the  expiration  of  the  said  term  of  one  year, 
a  true  copy  of  such  mortgage,  together  with  a  statement  exhibiting 
interest  of  the  mortgagor  in  the  property  thereby  claimed  by  him  by 
virtue  thereof,  shall  be  again  filed  in  the  office  of  the  clerk  or  register 
of  the  town  or  city  where  the  mortgagor  shall  reside.'  And  jui  indorse- 
ment as  follows:  '•  Refiled  and  renewed  the  (Uli  February,  181 1,"  has 
been  held  not  to  be  a  compliance  with  this  provision,  and  the  })roperty 
so  mortgaged  may  be  levied  on  and  sold  by  a  judgment  creditor, 
notwithstandinir  such  filintj  and  indorsement.*  The  confession  of  a 
judgment  for  the  same  debt  secured  by  the  mortgage  where  it  is  to  be 
held  as  collateral  to  the  mortgage,  does  not  merge  or  extinguish  the 
mortgage.'  Nor  does  the  taking  a  second  niDrigage  extinguish  the 
first,  unless  there  be  a  release  express  or  implied."  A  mortgage  duly 
executed  and  filed  in  the  proper  ollice  to  secure  a  l)ona  fide  debt,  is 
not  void  upon  its  face  by  reason  of  a  provision  therein  that  until  default 
be  made  in  the  payment  of  the  moneys  secured  thereby,  the  mortgagor 
is  to  remain  and  continue  in  the  quiet  and  peaceable  possession  of  the 
mortgaged  property  and  the  full  and  free  enjoyment  of  the  same, 
though  the  consideration  of  the  mortgage  is  but  a  small  part  of  the 
value  of  the  property  ujorlgaged,  where  the  possession  and  use  of  such 
properly  is  necessary  to  the  mortgagor  in  his. business.^ 

3  ■l.'i*.  (Joods  and  chattels  owned  by  the  defendant,  but  which  ho 
had  sold,  assigned  or  incumbered  for  the  purpose  of  himlcring,  defraud- 
ing or  delaying  creditors,  are  liable  to  be  seized  and  sold  upon  execution 
against  him,  whether  the  same  remain  in  his  hands,  or  are  in  the 
possessiion  of  another  claiming  to  be  the  owner  thereof.  What  will 
constitute  a  fraudulent  transfer  as  against  creditors  is  usually  a  mixed 


•:"    •'    '•      ■  ■  ••     •    ■•-.^11,  tilled.        •liOWeiirl.   17. 

I  '■,  *h.  'J.~'J,<)'i.      7  1  Kcniaii,  Carnlcy  V.  Uull. 

»  1  i-. .,■.,;  •;.  -  ^  ,  i»-l. 

•  1  Cum.  490. 


OF  TIIF.  ri' IISONAL  I'llOl'DRTV  .SlIi.lMC'l'  TO  LEW.      101 

question  of  law  and  of  fact,  and  n(j  satisfactory  ruU.'s  could  be  given 
for  determining  it,  within  the  limits  of  this  branch  of  the  sui)jcct,  as 
each  case  must  be  governed  by  the  particular  facts  and  circumstances 
which  surround  it.  It  may  be  said  generally,  however,  that  where  the 
defendant  is  in  the  possession  ol'  proj)erty,  using  it  as  his  own,  the  oflicer 
ought  to  make  a  levy ;  and  where  a  claim  is  made  to  such  property  by 
another,  the  sherill" should  determine  in  the  best  manner  he  can,  whose 
it  is,  and  whether  he  shoukl  release  it  or  should  sell.  If,  m  such  case 
the  plaintiir  tender  him  an  ample  bond  of  indenniity  against  any  claim, 
it  will  be  his  duty^to  proceed  to  sell,  unless  he  cliooses  rather  to  incur 
the  risk  of  jnoving  the  proiJcrt}'  not  in  the  defendant,  in  any  action 
that  the  plaintilV  may  l)ring  against  hiui  for  not  selling.  Where  the 
property  is  not  in  the  possession  of  the  defendant,  and  it  is  not  clear 
that  it  belongs  to  him,  the  sherilV  need  not  make  a  levy  unless  he  has 
tendered  to  him  by  the  i)laintiir,  the  most  ample  indemnity.  But 
generally,  where  projierty,  not  in  the  defendant*s  possession  is  so 
circumstanced  that  there  is  a  difliculty  jn  determining  whether  it  be 
the  defendant's  or  not,  the  party  resorts  to  other  means  of  redress  than 
by  levy.  I>ut  should  that  means  be  resorted  to,  the  sheriff  should  not 
only  see  that  his  indemnity  is  good  and  abundant,  but  that  the  property 
is  subject  to  the  execution. 

^453.  Where  property  has  been  replevied  from  a  levy,  it  cannot  be 
relevied  on  unless  the  party  rcpleving  dies,  when  it  may  be  again  levied 
on  by  the  same  execution.' 

^  454.  Though  goods  in  the  custody  of  the  hiw  are  not  subject  to 
levy,'  yet  if  the  executions  are  all  in  the  hands  of  the  sheriff,  or  of  his 
deputies,  a  levy  upon  one  execution  enures  to  the  benefit  of  all  the 
others  in  his  hands  while  such  levy  continues,  But  where  the  levy 
on  the  first  execution,  whether  in  the  hands  of  the  present  sherifl' 
or  of  the  late  sheritT,  or  a  marshal  or  constable,  is  invalid  for 
irregularity,^  or  the  execution  has  become  dormant  bv  reason  of 
delay ;  or  the  officer  has  levied  upon  property  not  subject  to  the 
execution,  as  the  property  of  a  joint  debtor  not  served  ;  or  where  tlie 
levy  is  upon  grass  growing,  or  trees  not  severed,  ami  a  subsequent 
execution  comes  to  the  sherilf's  hands,  he  is  bound  to  make  a  levy 
notwithstanding  such  claim  of  levy  by  another  or  bv  himself.^ 

i3  1.').").  Certain  persons  may,  under  particular  circumstances,  acquire 
a  lien  upon  the  i)roperty  of  another  while  the  same  remains  in  their 
hands,  until  the  amount  of  such  lien  is  fully  paid,  not  only  as  a,"-ainst 
the  owner  thereof,  but  as  against  his  creditors.  Such  lien  however, 
will  not  prevent  a  creditor  by  execution  from   lewing  upon  or  sellin^' 

'  1  Com.  100.  3  5Dcino,  198. 

»  Aute,  <)U0.  *  Autc,  ^440. 


IU2   < T  Tin:  ri:RSONAL  property  srnJECT  to  lhvy. 

such'iiropcrly  during  llic  contimmnro  of  sucli  lion  ;  but  the  levy  and 
salo  must  be  made  subject  to  sucb  lien,  or  iho  officer  may  sell  it  with- 
out regard  to  the  lion,  if  bo  will  pay  tbo  amount  tberettf  to  tbe  party 
having  tbe  lien.'  Hut  in  neitbor  case  can  tbe  iirojierty  be  taken  from 
the  possession  or  control  of  tbe  bailor,  before  payment  of  the  am«)unt 
of  bis  lien.  Some  of  sucb  liens  are  regulated  by  statute  and  others 
exist  at  common  law. 

g;  150.  Of  the  former  class  of  liens  are  those  created  by  statute  in 
favor  of  wreck  masters,  and  other  ollJccrs  and  persons  aiding  thom  in 
the  recovery  of  wrecked  property,  until  their  salvage  and  ex})onses 
are  paid."  This  lien  however,  only  exists  in  favor  of  the  oflu-er.'  And 
it  only  applies  to  cases  of  goods  lost  at  sen,  and  does  not  extend  to  a 
canal  boat  sunk  in  the  Hudson  river,  upwanls  of  a  hundred  miles 
from  sea  \*  or  to  timber  thrown  loose  by  the  flood  and  washed  down 
stream,  though  it  be  on  a  navigable  river.'  But  if  logs,  timber,  boards 
or  plank  have  drifted  on  the  lands  of  another,  such  person  may  detain 
such  lumber  until  he  has  been  paid  such  damages  as  may  have  accrued  or 
may  accrue  in  the  removal  of  sucb  logs,  if  such  damages  are  determined 
in  the  manner  pointed  out  by  the  statute.^  So  where  any  horse,  neat 
cattle  or  sheep,  stray  upon  the  premises  of  another,  who  complies  with 
the  statute  in  such  case,  he  shall  be  entitled  to  a  reasonable  charge  for 
their  keeping.''  So  a  lien  may  be  actpiired  upon  a  ship  or  vessel,  her 
tackle,  ajtjiarel,  and  furniture  which  shall  be  preferred  to  all  other  liens 
thereon,  except  mariner's  wages.*  Such  vessel  must  be  one  which 
sails  from  port  to  port ;  and  a  sloop  or  barge  of  the  tonnage  required 
to  take  out  a  license  under  the  act  of  Congress,  which  is  employed  in 
navigating  the  Hudson  between  Albany  and  New  York  is  such.*  And 
so  is  a  steamboat  enrolled  and  registered  as  a  coasting  vessel.'"  But 
it  is  otherwise  of  a  ferry  boat  running  between  New  York  and  the 
opposite  New  Jersev  shore;"  and  of  a  steam  canal  boat  running 
between  Albany  and  Troy."  And  there  must  bo  a  debt  due  of  fifty 
dollars  and  upwards,  contracted  by  the  master,  owner,  agent  or  con- 
signee of  such  ship  or  vessel,  (but  a  person  hired  to  build  such  vessel 
is  not  such  person,'^)  on  account  of  any  work  ilone,  or  materials  or 
articles  furnished  in  this  state  for  or  towards  building  or  repairing, 
fitting,  furnishing  or  equipping  such  shij)  or  vessel  ;  or  provisions  and 
stores  (including  coal  for  a  steamboat,")  on  account  of  wharfage  and 

•  2  I»'-i»i"  f''2f^.  •  1  n.  8.  008,  (/^l-C.  ">  a  S.'M.  008. 

•1  W.-M   •.'■"_'  2  11.  H.  H)H,  wil-G,4thc(l.    11  17  .jolin.  51, 

10  MR.  H.  .ini,  Ky>\.  no  iiiii,  :}5. 

«  1  H  M.  Gt;0,  »yjl,  tth  0.1.             13  20  Wind.  181. 

2  K  .-    i'l ,  V'-,  Jill  <•'!•  »  -  H.  H.  I'Xl,  <)l.                      u  r.  w.-n.l.  filO. 

J  :J  I'.;trl..  :;0M.  h\.  1.'.\,(A,H\hh\                     20Wcud.  177. 

«  7  n.irb.  113.  •  1  W.ri.l.  607. 

•  1  Cow.  Tr.  836.  3  Cum.  43«. 


OF  THE  PERSONAL  PROPIOHTV  SinJ.II'.CT  TO  LEVY.     103 

the  expense  of  Iioc]»ing  such  vessel  in  port,  iiicUuhng  the  expenses 
incurred  in  employing  j)(.'rsons  to  vvatclj  her.'  IJut  such  lien  shnll 
cease  when  such  vessel  leaves  the  state  ;  (hut  not  if  it  merely  goes 
beyond  the  state  line  to  test  the  machinery,'*)  and  also  at  the  e\i)ira- 
tion  of  twelve  days  after  it  has  left  the  port  where  the  debt  wa- 
contracted  for  any  other  port  within  this  state. ^  So  the  like  lien  i^ 
created  in  favor  of  any  owner  of  any  ship  or  vessel,  injured  by  an\ 
other  vessel  to  the  extent  of  fifty  dollars  or  upwards.  But  such  lien 
shall  cease  unless  a  warrant  shall  issue  as  prescribed  in  the  statute 
within  twenty  days  after  the  damage  shall  be  done* 

^  457.  The  class  of  liens  recognized  by  the  common  law,  are  those 
which  are  given  for  the  convenience  and  enjoyment  of  trade  ;  and  in 
fiivor  of  mechanics  or  manufacturers,  tradesmen  and  agents  who  have 
expended  money  or  labor  upon  property  in  their  hands  for  the  owncr.^ 
And  the  lien  of  the  former  will  attach  to  such  property,  althouf^h  the 
materials  and  part  of  the  exjjense  bestowed  upon  it  were  furnished  bv 
the  owner  ;  as  where  a  brick  maker  agreed  to  make  brick  for  the  owner 
of  the  yard,  who  was  also  to  furnish  the  sand  and  all  other  necessaries, 
and  to  pay  for  the  work  on' the  return  of  the  vessel.*  And  even  where 
there  is  a  special  agreement  as  to  the  mode  of  payment,  which  is  vio- 
lated on  the  part  of  the  owner,  without  fault  of  the  manufacturer,  it 
will  not  do  away  with  the  lien  given  him  by  the  common  law.^  A 
common  carrier  may  detain  goods  till  paid  for  carrying  them,  and  he 
canxletain  all  the  goods  carried,  until  his  whole  claim  is  paid  f  and  so 
in  the  case  of  a  workman,  the  lien  extends  to  all  the  goods  delivered 
under  one  contract,  and  not  merely  to  the  particular  portion  on  which 
labor  has  been  bestowed.^  Innkeepers  have  a  lien  upon  the  goods  of 
a  guest,  who  is  either  actually  or  constructively  so  at  the  time.'"  But  it 
will  be  sufficient  where  one  sends  his  horse  or  trunk  in  advance  to  an 
inn  and  says  he  will  soon  be  there  himself.  And  so  if  he  left  his  horse 
at  the  inn  to  be  fed  and  cared  for  while  he  went  to  a  friend's  to  dine,  or 
to  a  neighboring  town  to  remain  a  few  days  and  return.  But  it  would 
be  otherwise  in  such  case  if  the  property  was  inanimate  for  which  the 
landlord  derived  no  advantage  in  the  way  of  trade.  And  the  innkeeper 
has  such  lien  though  the  horse  be  a  stolen  one,  if  he  did  not  know  the 
fact.  But  if  the  horse  is  that  of  a  neighbor,  left  there  to  be  kept,  the 
latter  having  the  right  to  use  him  at  pleasure,  no  lien  attaches  in  favor 
of  the  landlord."  The  above  cases  are  those  where  the  lien  is  said  to 
be  specific  or  jmrficnlar ;  that  is,  where  the  party  has  but  a  lien  upon 

'  2  R.  S.  493,  ^1.  <  2  R.  S.  7?,0,  yyi:3-4o,  Itli  ed.  7  n  Wond.  77 
Id.  733,  1^1,  4th  cd.  Laws  1831,  ch.  318,  (yU-S.   s  o  Kj.„(   ,505 

2  6  Hill,  494.  s  3  Hill,  485.  4  Wend.  292.      9  4  Com  ' 5ry^  ' 

3  2  R.  S.  494,  §2.  11  Wend.  77.  2  Kent,  635.  10  3  Hill  488 

Id  /  34,  (y2,  4th  ed.  4  Com.  552.  11  25  Wend.  653. 

2  Sandf.  395.  «  4  Wend.  292.  3  HiH  455  491 

26  .      .      • 


ID  I     ( >l-  TIIK  PF.RSOXAL  PROPKRTY  SrnJKCT  TO  IJ:\  V. 

thesjMJcified  i>iecc  of  property  for  the  money,  or  labor  bestowed  upon 
it,  nnd  is  distinguished  from  a.  general  Wen,  \\hi«h  is  where  the  parly  has 
a  ben  upon  all  llie  property  of  the  bailor  in  the  bailee's  hands,  for  any 
mtMU-ys  due  him.  In  general,  speejfic  or  i)artictdar  liens  only  conlinue 
while  the  property  is  in  the  possession  of  the  party  entitled  thereto. 
And  if  he  parts  with  the  possession  thereof  befure  payment,  he  loses 
his  lien  :  as  where  the  owner  of  a  saw  mill  is  to  have  a  lien  upon  the 
boards  sawed  until  paid  for,  ami  he  allows  them  to  be  placed  on  the 
banks  «if  the  canal  half  a  mile  from  his  mill,  his  lien  is  gone  as  to  third 
persons,  although  it  is  agreed  between  the  parties,  that  the  same  should 
continue.'  So  the  lien  will  be  lost  if  he  permits  the  goods  to  be  taken 
out  of  his  possession  though  restored  to  him  agairt.  And  where  an 
innkeeper  has  a  lien  upon  .'several  horses  belonging  to  the  same  jterson, 
he  cannot  have  a  lien  upon  one  left,  for  the  charges  against  the  otiicrs 
after  they  are  taken  away.'  It  has  been  decided  that  attrtrncys,  bank- 
ers, brokers,  calico  printers,  factors  and  fullers,  in  some  places,  and 
packers  and  wharfingers,  have  by  custom  a  general  lien.'  As  such 
lien,  whether  specific  or  general,  is  intended  for  the  convenience  and 
enjoyment  of  trade  only,  it  does  not  apply  where  the  services  or 
expenses  incurred  are  not  within  the  scope  of  some  particular  branch 
of  commerce  or  trade ;  thus  a  farmer  or  stable  keeper  who  receives 
horses  to  feed  or  care  for,  has  no  lien  upon  them,  because  the  services 
are  not  those  of  a  tradesman.  Livery  stable  keepers  have  no  lien 
unless  by  special  custom.*  It  must  be  observed  however,  that  it  is 
always  competent  for  the  i)arlies  to  create  a  lien  or  pledge  by  their 
agreement  to  any  extent  they  choose.* 

5  158.  It  has  already  been  seen  that  the  goods  of  an  ambassador  or 
other  [tublic  minister,  cannot  be  seized  upon  execution  :  nor  those  of 
anv  domestic  or  domestic  servant  of  such  ambassador,  except  in  the 
cases  pointed  out.*^ 

f>  IfiO.  The  goods  of  a  certified  bankrupt,  and  of  one  discharged 
under  the  insolvent  debtor's  act,  are  protected  from  levy  under  a 
judgment  on  a  debt  for  which  the  defendant  was  discharged  by  his 
certificate.  But  the  sherifi"  is  not  bound  to  lake  notice  of  such  privi- 
lege, but  should  leave  the  party  to  apply  to  the  court  for  relief,  for  if 
be  releases  the  levy  and  it  should  turn  out  that  the  discharge  was  void, 
he  Would  be  li.ible.' 

2  MM).  Goods  and  chattels,  upon  which  a  valiil  levy  has  been  made, 
and  which  has  not  become  dormant  by  reason  of  <lclay,  or  otherwise 

I  iff,  w.    ,!    l.,7  <  .:  Hill  4Rr>.  •  Anto,  ^202. 

t8i  r.  irli.  f»'J7.  7  2MV.ii(l.  .'151. 

>!•  ,1.  1'      \.Tr.  330.  WaUon,  176. 


()[■  1  in;  rioiisuNAL  i'ii<  jimorty  subject  to  levy.    195 

discharged,  are  in  the  custody  of  the  law,  and  cannot  be  levied  on  hy 
another  ollicer  under  any  other  process.' 

^  U\l.  VVIierc  the  execution  is  against  the  owner  of  the  land, 
"fixtures"  cannot  be  sold  on  execution  against  him  as  personal  prop- 
erly. They  arc  a  i)art  of  the  freehold,  and  must  be  sold  as  real 
estate  with  it.'^ 

§  41V2.  Certain  personal  property  is  exempt  from  levy  and  sale  on 
execution  hy  statute  and  at  common  law.  Thus,  by  the  provisions  of  the 
Revised  Statutes,  it  is  declared  that  the  property  hereinafter  mentioned 
cannot  be  levied  on  and  sold  under  an  execution  against  the  owner 
wiicn  he  is  a  householder.  A  "  householder"  is  the  head,  master,  or 
jierson  who  has  charge  of  and  provides  for  a  family.  It  has  been  held 
that  one  who  rents  a  house  and  keeps  boarders  and  servants,  is  a 
householder,  though  he  has  neither  wife  nor  children  I'or  whom  he  pro- 
vides.' And  where  the  husband  has  left  the  state,  leaving  a  wife  and 
children  together,  she  will  be  deemed  a  householder.^  But  an  adult 
male,  residing  with  his  stepmother  and  transacting  her  business,  will 
not  be  deemed  such.''  Such  property  is  also  exempt  wi)ile  the  family 
of  such  j»erson,  or  any  of  them  may  be  moving  from  one  place  of 
residence  to  another.®  And  such  householder  does  not  lose  the  char- 
acter of  housekeeper  by  ceasing  temporarily  to  keep  house  and  storing 
his  property,  with  a  view  to  retake  it  again  and  renew  housekeeping.' 
The  articles  of  personal  property  thus  exempt,  when  owned  by  such 
person,  are : 

1.  All  spinning  wheels,  weaving  looms  and  stoves  put  up  or  kept  for 
use  in  any  dwelling  house : 

2.  The  family  bible,  family  pictures  and  school  books  used  in  the 
family  of  such  person,  and  books  not  exceeding  in  value  fifty  dollars, 
which  arc  kept  and  used  as  a  part  of  the  family  library  : 

3.  A  seat  in  a  pew  occupied  by  such  person  or  his  lamily  in  a  house 
or  place  of  public  worship  : 

•1.  All  sheep  to  the  number  of  (en,  with  their  fleece,  and  the  yarn  or 
cloth  manufactured  from  the  same.  And  such  wool  and  cloth  will  be 
exemjit  though  the  defendant  does  not  own  the  sheep  from  which  the 
wool  was  sheared.^  One  cow,  two  swine,  the  necessary  food  for  them  ; 
all  necessary  pork,  beef,  fish,  flour,  vegetables  procured  for  family  use, 
(whether  gathered  or  growing,^)  and  necessary  fuel  for  the  family  for 
sixty  days : 

5.  All  necessary  wearing  apjiarel  owned  by  the  householdev,  or  fur- 

•  Ante,  (^440.  6  2  R.  S.  367,  ^22.  s  n  -^Vend  44 

2  Ante,  v>44l).  M.  G14,  ^22, 4th  cd.                 21     "      68. 

3  Voorliios'  Code,  ^291  n.  18  John.  400.  9  25  Wend    370 
«  18  John.  400.  7  14  B.-\rb.  456. 

5  19  Wend.  475. 


I'm;   (>k  Till-:  i'kksonal  iMioi'Kirrv  sriuicci'  to  ]j:vy. 

niihcd  l)y  iiiin  lor  tlie  uso  of  olhors  living  wilh  liitn;  Iml  llio  exemption 
does  not  exlrnd  to  the  clothing  of  one  living  in  the  fatnily  who  provisos 
fhem  for  himself.'     I    '  '     •  of  this  Hlatnte,  however,  nil  nrcrssanj 

wearing  oppiiri'l  of  !  .  wlicther  Iio  bo  n  hoii>ehol<ier  or  not 

is  exempt.  Hut  if  ho  have  two  coats,  the  sheriirmay  take  one'  Hcds 
'T^''  '     '  '        '  '    !  '    '  '   r  ami   his  family,  arms  ami  acooulre- 

HH'  ,  _•    hy  .such  person  ;  necrssary  cooking 

utensils  (hut  to  render  them  exempt  it  must  appear  aflirmutively  that 
they  ,iid  not  fi  .fill.'')     Cue    tahle,  six  chairs,  six 

l^nis  jilates,  .  ups  and  .sauceiH,  oiio  sugar  dish, 

one  milk  |)oi,  one  tea  pot  and  six  sj)Oon«,  one  crane  and  its  appendages, 
'•nc  pair  cd'andimns,  and  shovel  and  tongs: 

(5.  The  tools  and  implements  of  a  mechanic,  nccessn?  v  i*.  r  in  v  <.i) 
his  trade,  not  exceeding  in  value,  twenty-five  dollars.* 

($  103.  IJy  the  exemjition  law  (d'  IM  |-i,  it  was  declared  thai  m  addition 
to  the  articles  then  exempt  hy  law  from  distress  for  rent,  or  levy  and 
sale  under  execution,  there  should  bo  exempted  from  such  distress, 
levy  and  sale,  necessary  household  furniture,  and  working  tools  and 
loam  owned  by  any  person  being  a  hunaehotdir,  or  having  a  family  for 
which  he  provides,-^  to  the  value  of  not  exceeding  one  hundred  and 
fifty  dollars,  provided  that  such  exemption  shall  not  extend  to  any 
execution  issued  on  a  demand  for  the  jairchaso  money  of  such  furniture 
or  tools,  or  team,  or  articles  now  enumerated  by  law."  It  has  been 
finally  determined  that  the  provisions  of  this  law  extend  to  an  execution 
on  a  tiemaiid  contracted  previous,  as  well  as  to  one  contracted  after  the 
passage  of  the  act.'  And  also  that  the  evemplioii  by  the  Revised  Statutes 
and  the  said  act  of  1812,  are  independent  ;  and  that  property  exempt 
under  the  former,  cannot  bo  taken  on  execution  on  a  judgment  for  the 
purchase  price  of  such  jiroperty,  or  ol' property  exemiil  by  said  act;  but 
that  property  exempt  by  the  law  of  iNlVi,  is  liable  to  be  taken  on  an 
execution  issued  uj)f)n  a  judL'iiient  reco\oied  on  a  <lebt  contracted  lor 
the  purchase  of  arti«-les  exempt  by  the  lievised  Statutes  or  said  act.' 
And  that  the  jiroviso  of  said  act  di)es  not  extend  to  ilu'  projHirty  of  a 
■r  the  jnirchaso  price  of  such  exempt  pro|ierty  .  ami  that  his 
,  ,  },  if  othorwiso  exempt,  cannot  be  soM  on  an  execution  against 
him  on  u  judgment  obtained  against  him  as  surety  on  a  note  for  the  pur- 
chase piH-r  of  cxfiiipl  property.*  The  exemption  of  a  necessary  "  team" 

luis  t'l  .  en    n   (•  fu  .i   \:iiii>lv    ■  if  i  minii  >iiv,         |t   i<  ci  lun-iv  ciI    |ii>\Vi\r!\  that 


'   1' 
»  1'. 


!•! 


n 

1 1 
1  1 


1.  » 1 

rtcwill,  212.   • 


-•.1. 

■    IK 
1   1 

1    (    ..Ml      i.i 

nil  •<! 

*  lU  llnrl>.  i)l. 

1  IT,  <'.l 

1           '.1     "      070. 

0  Ilow.  \1\ 

»  11)  Unrh   ill. 

OF  Till-:  ri:us()NAL  riioricin  v  .shujicct'iu  li:vv.    j<j7 

tlio  huo  ccmstruclioM  woiilil  iiicliKle  tlio  necessiiry  nnlmals,  wljcthcr 
Olio  or  two  horses,  or  iiuilrs,  or  .'i  pair  of  own,  llio  liariit-  s,  \(i|ve  and 
chains,  and  ihc  vchiflo,  whi-lhcr  a  wagon  or  cart,  to  which  thov  are 
harnessed,  nc(!essary  to  jxTform  the  service  for  which  ihcy  are  nscd  ; 
whether  this  he  the  sacMle  horse,  or  horse  and  wa^on  (d*  a  physician, 
the  dray,  liorse  and  hai'ness  of  a  carhnan,  cr  the  ]'air  of  horses  or  oxen 
of  ii  fanner  or  teamster.'  lUu  necessary  Ibod  for  a  team  is  Jiot 
exempt.'' 

,^S  i<»l.  i»y  the  provisions  of  certain' other  statntes,  the  followinfr 
pr()perty  is  hkcwise  exem|»t  from  levy  and  sale  on  execution  : 

1.  The  shares  lichl  hy  mendiers  of  hnilding  associations,  mutual  loan 
and  accumulating  fund  associations  to  the  amount  of  six  hundred 
dollars,  at  par  value  :^ 

t2.  Also,  all  materials  i)rocurctl  or  partially  procured,  umlcr  a  contract 
with  the  canal  commissioners,  shall  be  exemj)!  from  execution;  hut  it 
shall  he  the  duty  of  the  canal  comn»issit)ners  to  pay  t!ic  money  due  for 
such  materials  to  the  judgment  creditor,  of  the  contractor  under  whose 
execution  such  materials  might  otherwise  have  been  sold,  upon  his 
producing  to  them  due  proof  that  his  execution  would  have  so  attached 
and  such  payment  shall  be  held  a  valid  payment  on  the  contract:* 

li.  Every  otlicer,  non-conunissioncd  ollicer,  musii-ian  and  private  of 
the  unil'ormed  militia  of  this  state,  who  shall  iiavo  jirovideil  himself 
with  a  uniform,  arms  and  accoutrements,  required  by  law  or  regulation, 
shall  hold  the  same  cxem])t  from  all  suits,  distresses,  executions  or  sales 
for  debt,  or  the  non-jiayment  of  taxes  ;  and  every  mounted  oHiccr,  ami 
every  member  of  a  trooj),  cavalry  or  light  artillery,  who  shall  own  a 
suitable  horse  necessary  for  his  use  as  siich  oflicer  or  mendier,  shall 
hold  the  same  with  the  like  exemption.'  The  same  excmjjtion  is 
extended  to  the  brigades  oflhe  first  military  division, and  the  filth  brigade 
of  the  second  military  division,  excej)!  that  it  only  extends  to  executions, 
and  to  render  the  horse  exen>i>t,  it  must  be  actually  enrolled.* 

^S  KJ").  The  courts  have  also  determined  that  the  following  property 
is  likewise  exempt  from  levy  and  sale  on  execution  : 

All  necessary  wearing  aj)parcl.  But  if  the  party  have  two  coats,  the 
sherilV  may  take  one.  This  exemption  is  iutlependent  of  the  statute,  and 
exists  by  common  law  ;^  choses  in  action  ;'  bank  shares,  or  shares  in  a 
public  library,  they  being  mere  choses  in  action  ;'  promissory  notes, 
private  papers  or  account  books  ;'"  the  franchise  of  a  turnpike,  plank 

»  6  IIow.  Tr.  R.  288.  ^  Laws  18ol,  p.  10G8,  ^5.  »  3  S;»ii(ir.  iVy2. 

6  I.l.  18.  «  III.  1080,  \^b:i.  1  Cow.  210. 

8  III.  75.        ;  7  n.)  Wiiul.  475.  12  John.  220. 

»  5  PiMiio,  110.                              2  Cow.  Tr.  621.  »  9  Joliii.  %. 

3  L,»ws  1.S51,  I'll.  230.                   W.u.si.n,  178.  1  Cow.  210. 

M  H.  8.  :i21,  viVS.                        Sowell,  242.  »o  Alk'ii,  101. 

111.  478,*i)40,  4lheil. 


\9S     OF  TilH  PKUSoNAL  iMloPHKTV  Sl'IJJKCT  To  l,i:\  V. 

roati  or  corporalion  ;'  |ier>oiial  property,  duly  mortgaged,  of  wliicli  the 
mortgajjeo  has  the  right  of  possession,  or  has  taken  )K)ssession  thereof, 
is  not  subject  to  levy  and  sale  ni^ainsl  the  inortga<Nir  ;*  property  let  to 
hire,  can  not  be  levied  on  by  execution  against  the  owner,  during  the 
time  the  jiroperty  is  so  hired,  and  while  in  the  j)ossession  and  use  of  tlie 
hirer.*  Nor  the  rcsitbiary  interest  of  the  defendant  in  goods /'«;u/  //\/« 
assigned  by  him  in  trust  for  the  payment  of  debts  or  other  specific, 
purposes,  alter  the  purposes  of  that  trust  are  satisfied.*  Money  paid  on 
an  execution  does  not  become  goods  and  chattels  of  the  plaintilV  until  it 
has  been  paid  out  to  him  ;  and  while  it  remains  in  the  hands  of  the  shcrilV, 
he  cannot  apply  it  to  the  satisfaction  of  another  execution  .igainst  the 
former  plaintifi?  IJul  where  a  constable  levied  on  a  horse,  which  he 
also  attached,  and  a  sale  was  had  on  the  execution,  and  a  surplus  was 
realized,  it  was  held  that  such  surplus  was  rightfully  levied  on  by  the 
constable  under  the  execution  in  the  attachment  suit  when  in  his  hands.' 
Where  goods  are  purchased  fraudulently,  with  intent  to  subject  them 
to  the  execution  of  a  judgment  creditor,  the  title  does  not  become  vested 
in  the  purchaser,  and  the  sherifl'  cannot  levy.^  And  where  one  purchased 
goods  for  cash,  and  they  were  delivered  at  too  late  an  hour  on  Saturday 
to  present  the  bill,  but  it  was  presented  on  Monday  morning,  when  it 
was  found  that  the  sherifi'lind  levied  on  the  goods,  it  was  held  that  the 
title  had  not  i)assed,  and  that  they  were  not  liable  to  the  execution.' 
Where  goods  are  purchased  condilionrdly,  on  the  payment  of  a  fixed 
price  at  a  given  period,  and  the  purchaser  is  to  have  the  possession, 
and  is  to  use  the  property,  until  he  fail  to  com|>ly  with  the  terms  of  the 
purchase,  such  purchaser  has  no  such  title  as  can  be  levied  on  and  sold 
on  execution.' 

5  'ItU)."  The  exemption  ol  property  from  sale  on  execution  is  a 
personal  privilege,  of  which  the  defendant  alone  can  avail  himself,  and 
he  may,  if  he  chooses,  assent  to  the  levy  and  sale  of  exempt  property." 
Thou^'h  the  assent  of  the  wife  in  the  absence  of  the  husband,  that  the 
oflicer  may  levy,  is  not  binding  on  him."  But  if  any  part  of  the  judg- 
ment was  for  the  sale  of  intoxicating  liquors,  any  levy  and  sale  of 
any  exempt  property,  even  witli  the  consent  of  the  ilefendant,  shall  be 
void." 

•  i  ^T        '■  ■  •  II  li.Mi.   .Ays.  «  2.1  W.-i..l.;i72. 

A  1  W;ilson,  205.  »  2  Hill,  :!2n. 

«  1  •  Ifi  John.  117.  >»  1  Cow.  114. 

A  1  I'.iigf,  102.  10     "     602. 

»11  2    "      100.  "  18  John.  400. 

«6.l  4     "     0;J7.  >«Law»1812,ch.  167,^3. 

2'  :^i.  23  W.M..I.  372,011. 

4  (•■'«    I'.'.  20     "       107. 

*  1  rr.,ii.h,  117.  1  Hiil,;i02,  311,317. 
CCow.  4'.M.     5John.  IG."..        AlUn,  102. 

Col,  &.  Ca   Cm.  435.  Orftham's  Pr.  374. 

All'  I.  ir,2. 


OF  SALICS  UNDi:il  KXF.CCTIOX.S.  ][)f) 

CHAPTER   XXVI. 

OF  SALES  UNDKR  EXECUTIONS. 

^  407.  The  sale  of  real  cslrile,  or  of  any  personal  propfrlv,  l)y  virtue 
of  any  execution,  shall  he  at  imhlic  vendue  ;'  and  such  ..sale  must  be 
con(hicted  by  the  sherill'  or  other  t>llieer  holding  the  execution.  IJut 
an  auctioneer  may  be  employed  to  call  oil"  the  property.  The  ofliccr, 
however,  must  be  present,  and  conduct  anrl  direct  the  sale,  and  the 
))roperty  can  only  l)e  struck  olFhy  such  auctioneer,  to  the  bidder,  with 
his  assent  and  ai)]»roval.  The  sale  must  be  by  tlie  ollicer.  Where  an 
auctioneer  is  employed,  which  is  generally  at  the  instance  of  parties 
interested  in  liaving  the  goods  bring  the  highest  prices,  the  exj)enses 
thereof  must  be  paid  by  such  parties,  as  it  cannot  be  charged  to  the 
sales.  If  the  oflicer  employs  him  for  his  own  convenience,  he  must 
pay  the  expense  himself,  out  of  his  commissions.'* 

;5  UJS.  The  sale  must  be  made  between  the  hr.ur  of  nine  o'clock  in 
the  morning  and  the  setting  of  the  sun  ;  and  if  it  is  made  after  that 
hour,  it  will  be  void.^  If  the  prbj)erty  cannot  all  be  sold  before  sun 
down,  the  sale  of  the  balance  must  be  postponed  until  the  next  day,  or 
until  some  other  convenient  time.  If  such  sale  is  postponed  until  the 
next  day,  it  will  be  sufficient  to  announce  such  adjournment  at  the 
close  of  the  sale.  But  if  it  is  postponed  to  a  time  beyond  the  next  day, 
there  should  be  a  notice  of  such  postponement  posted  up  in  three 
several  places  in  the  city  or  town  where  the  sale  is  to  take  place,  as  in 
giving  the  original  notice.  If  the  original  notices  are  standing,  it  will 
be  sufficient  to  annex  notices  of  postponement  thereto.  If  it  be  a  sale 
of  real  estate,  and  the  sale  is  postponed  beyond  the  next  regular  pub- 
lication day  of  the  newspaper  in  which  the  original  notice  of  sale  was 
published,  notice  of  the  postponement  must  also  be  inserted  in  such 
paper,  once  a  week  until  the  day  of  sale. 

^  100.  Ileal  and  i>ersonal  property  cannot  be  sold  together.^  And 
whether  it  be  real  or  personal  property,  each  parcel  should  be  put  up 
and  sold  specifically  and  sei)arately,'  or  in  such  lots  or  parcels  as  shall 
be  best  calculated  to  bring  the  highest  price.'  But  a  stranger  has  no 
right  to  object  that  the  property  was  not  so  sold.''  And  only  so  much 
should  be  sold  as  will  in  the  opinion  of  the  officer,  bring  the  amount 
required.^  And  if  the  officer  sells  more  than  sufficient,  he  will  be  liable 
to  an  action  by, the  defendant  therefor. 

'  2  R.  S.  3G0,  ()^r,.  4  17  j,,l,n.  Hfi.                          7  9  Cow.  274. 

Id.  C17,  <)io,  -Ith  cd.  5  14  John.  352.                          8  1  John  Ch  605 

«  Scwoll,  258.  6  2  R.  S.  308,  \y23. 

3  2  R.  S.  3(59,  ^36.  Id  016,  ^32,  4th  cd. 

Id.  017,^45,  4th  cd. 

14  Barb.  9. 


200  OK  SALKS  UNDr:R  HXKCUTIONS. 

;5  170.  No  sale  of  real  «)r  personal  property  can  be  niailo  under  an 
execulion,  unless  notice  of  such  sale  shall  have  been  given  for  and  in 
the  manner  |)oinUHl  out  by  the  statute.'  Ajid  it  is  provided  by  statute 
that  if  any  pcr.son  shall  take  down  any  notice  of  a  sale  of  real  or 
personal  property,  put  up  by  any  sherilV,  previous  to  the  day  of  sale 
therein  '    '       '  satisfaction  of  the  execution,  by  virtue  of 

which  I  1  given,  or  upon  the  consent  of  the  j)arty 

suing  out  such  execution,  and  of  the  defendant  therein,  such  person 
shall  forfeit  fifty  doHnr.s  to  the  party  in  whose  favor  such  execution  was 
issued."  But  the  OMiissjon  of  any  sherilV  or  other  oflicer  to  give  the 
notice  of  sale  herein  required,  or  the  taking  down  or  defacing  of  any 
such  notice  when  jnit  up,  shall  not  afloct  the  validity  of  any  sale  made 
to  a  purchaser  in  go.Ml  f:ii!l)  \\itlir>iii  n  iili-c  of  nnv  sucli  omiss'on  oi- 
offence.^ 

^  171.  Either  parly  to  an  a(Uiun  may  bid  on  the  sale  of  any  properly 
sold  under  an  execution  ;  and  a  defendant  may  purchase  on  a  sale  of 
the  properly  of  a  codefendant.  And  so  a  stockholder  may  purchase 
corporate  property  on  a  sale  thereof  by  the  sheriff  for  his  own  benefit.* 
Where  the  plaintitV  purchases  property  so  sold,  and  there  is  no  contro- 
versy as  to  who  i.s  entitled  to  the  proceeds  of  the  sale,  he  is  not  required 
to  pay  his  bid  unless  there  is  a  suri)lus.  In  which  case  he  will  be  bound 
to  pay  such  surplus.^  But  if  there  is  any  dispute  between  creditors, 
as  to  whom  the  proceeds  should  go,  the  sherilf  may  refuse  the  plain- 
tifTs  bid,  unless  he  will  pay  the  amount  of  his  j.urchase  ;  or  he  may 
refuse  to  deliver  the  property  to  him  till  j>aid  the  money  ;  and  he  may 
proceed  to  sell  again  if  he  be  not  paid  according  to  the  bid  made." 
Where  there  is  no  such  controversy,  the  sherifl'  may  deliver  the  prop- 
erty sold  to  him  to  the  plaintifl*  in  the  execution  ;  and  if  the  judgment 
is  reversed,  he  will  not  be  liable  for  the  money  to  liie  other  judgment 
creditors.^  The  sherilTmay  refuse  the  bid  of  an  infant.  And  though 
the  pro]ier{y  must  be  sold  to  the  highest  bidder,  yet  if  an  infant  bids 
and  he  refuses  his  bid,  and  it  is  sold  for  a  less  amount,  he  will  not  be 
liable." 

,^  17t>.  But  no  .shcriir,  or  any  other  olllcer  to  whom  any  execution 
shall  be  directed,  and  the  deputy  of  such  sheriff  or  olhcer,  holding  any 
execution,  and  conducting  any  sale  of  property,  .sliall  directly  or  indi- 
rectly ;  any  property  whatever,  at  any  sale  by  virtue  of  such 
execul;  ..  ;  .-  1  all  purchases  made  by  such  sherilV,  olhcer,  or  deputy, 
or  to  his  use  shall  be  void.'     But  this  prohibition  does  not  apply  to  a 


1  2  n.  .*- 

«  2  n.  8.  800.  ^39. 

*  5  Cow.  aoo. 

1  •  '  • 

It    '•"     ■■-     1",  r,]. 

l: 

7  l;t.T..lm.  HI. 
"  1  lliii.r.ij. 

1-.^  .... ,.  .  ^  -    '■ 

1 :           -  ,  ;.:.c.i. 

»2K.  .S.  :iH\^\\. 

l'«it,V^476,40U 

Id.  018,  $50,  Ith  cd 

OF  SALES  UNDKR  EXECUTIONS.  201 

turnkey  or  jailer  who  is  not  a  deputy.'  Ami  a  deputy  sliorilV  who  is  a 
[)IaintifT,  or  assii^uco  ofa  judf^nient,  may  bid  on  the  snlc  of  the  defend- 
ant's i>roperty  when  made  by  the  sheriU'or  another  deputy,  to  save  his 
debt." 

<5  173.  The  same  rule  prevails  upon  a  sale  under  legal  process,  as  in 
other  cases  of  sales  at  jnibiic  vendue.  Until  the  pro]>erty  is  actually 
struck  oil'  to  the  bidder,  he  may  withdraw  his  bid.  But  when  it  is  so 
struck  oil",  the  sale  is  complete,  iind  if  tl»e  purchaser  refuses  to  take  the 
property  and  pay  the.  bid,  the  ollicer  may  recover  the  value  of  the 
purchaser,  or  he  may  sell  the  property  at  once,  and  recover  from  him 
the  dilTercncc,  if  any,  between  his  bid  and  the  second  salc.^  When  the 
plaintill'has  bid  oH' goods,  the  shcriU'hasno  right  to  allow  him  to  with- 
tlraw  his  bid. 

^  474.  The  ofliccr  has  a  reasonable  discretion  in  adjourning  a  sale, 
and  he  may  do  so  to  another  place  if  necessary,  before  the  sale  has 
commenced.'  If  he  cannot  get  a  reasonable  price  for  goods,  it  is  his 
duty  to  susjiend  the  sale,  and  if  for  this  cause  he  is  unable  to  make  the 
money  by  the  return  day,  and  is  required  by  the  plaintiff  to  return  the 
execution,  he  must  return  thereto  that  the  goods  levied  on  remain  in 
his  hands  for  want  of  bidders.  And  he  must  still  retain  possession  of 
the  goods,  and  when  he  is  served  %vith  a  venditioni  exponas,  he  must 
sell  them  at  whatever  price  he  can  obtain.^  But  he  will  not  be  justi- 
fied in  selling  upon  the  execution,  greatly  under  the  value  of  the 
property.  And  the  sherifV  is  not,  in  his  respect,  bound  to  obey  the 
direction  of  the  attorney,  if  he  sees  that  it  will  produce  great  sacri- 
fice of  property  ;  but  he  should  postpone  the  sale  where  the  plaintiff 
cannot  sustain  any  injury  by  the  delay.  The  officer  should  take  all  « 
necessary  means  to  secure  the  sum  directed  to  be  levied,  but  as  to  the 
time,  place,  and  manner  of  sale  he  is  vested  with  a  sound  discretion.** 

^  175.  On  receiving  payment  of  an  execution,  or  on  sale  of  prop- 
erty on  an  execution,  or  upon  the  redemption  of  lands  sold,  the  officer 
may  receive  current  bank  bills;  and  under  the  ordinary  notice  of  sale, 
the  plaintiff  has  no  right  to  require  that  the  sheriff  shall  receive  specie 
only,  and  if  he  does  so,  and  the  officer  obeys  him,  and  thereby  parties 
and  bidders  are  put  to  expense  and  trouble,  or  the  property  briufrs  less 
than  its  fair  value,  it  is  an  abuse  in  the  officer  and  is  censurable.'' 

§  476.  If  the  sheriff  sells  goods  without  due  authority  of  law, 
nothing  vests  in  the  purchaser.*  But  a  sale  by  a  sheriff  of  propertv 
levied  upon,  under  a  junior  execution,  will  be  valid.'     A  sale  of  real  or 

1  1  Weiul.  -171.  ••  5  Joliii.  345.  ^  4  Cow.  422 

2  3  Cow.  SO.  5  Sowell,  253.  2  Cow.  1:^9 

3  1  Cow.  Tr.  110.  Ante,  ^423.  8  7  John.  505 
2    "     510.  «2Cow.  140.  9  12  Joliii.  IGl 
in.  Black.  81.  AnU\^>407.  18     "     311. 

27 


202  OF  SALES  rNDKR  KXICCLTIONS. 

personal  property  l>y  the  shcrilV  on  execution,  only  passes  surh  title  as 
the  (lereniiunl  may  have  therein.  If  the  i»oo(is  were  duly  niortgagetl 
by  the  defentlant  and  he  \u\^  the  ri^ht  ul"  i  n  lor  a  <lerinite  lime, 

the  purchaser   acquires    such  right  of   j  and    iho  ecjuily   ol 

redemption.  And  it  will  make  no  dilVerence  whether  the  shoritV 
assumes  to  sell  the  s;<mm1s  absolutely,  or  sells  theu)  subject  to  the  lien  ol" 
the  mortgagee.  The  manner  of  sale  'cannot  allcc^  the  rights  ol"  the 
mortgagee  or  of  the  purchaser.'  Ikil  if  the  mortgage  is  void,  and  the 
purchase  is  made  in  hostility  to  it,  the  purchaser  will  hold  the  properly 
absolutely."  If  the  defendant  had  no  interest  in  the  property  sold,  the 
purchaser  acquires  no  title  thereto  by  the  sale,  for  such  sale  can  give 
hitn  no  rights  in  the  lands  or  goods  of  a  strarfger.^  Where  goods 
which  do  not  belong  to  the  judgment  debtor  are  sold  by  the  sheriff  on 
execution,  the  owner  thereof  may  bring  an  action  against  the  def»uty 
who  made  the  levy  or  sale,  or  the  sheriff,  or  both ;  or  the  plaintiff  or 
attorney  who  authorized  or  directed  the  sale,  or  the  purchaser.  But 
the  sale  of  the  real  estate  of  a  stranger,  as  it  conveys  no  rights  and 
does  not  dispossess  the  owner,  it  gives  no  right  of  action  against  either 
the  party,  the  purchaser,  or  the  officer.* 

^  -177.  But  where  the  sale  of  personal  properly  on  execution  is  valid 
as  against  the  judgment  debtor,  the  purchaser  acquires  all  the  rights 
of  such  debtor  therein.  He  has  the  right  to  enter  upon  the  j)remises 
where  sold  and  to  remain  long  enough  to  remove  them  ;  and  if  they 
are  growing  crops,  ho  may  enter  upon  the  land  to  lake  care  of  them, 
and  gather  them,  and  remove  them  when  ripe,  whether  the  land  upon 
which  they  grew  was  the  defendant's  or  only  leased  by  him.  If  the 
goods  were  pledged  or  mortgaged,  he  acquires  the  rights  of  the  jiledgor 
or  mortgagor  therein  on  his  complying  with  the  conditions  of  such 
pledge  or  mortgage  ;  and  where  a  term  in  goods  is  sold,  the  purchaser 
mav  use  them  during  the  remainder  of  the  terui.  Ii'  the  i)roperly 
so!  ■  'd  to  the  defendant  with  others,  as  joint  tenants  or  partners, 

ih-  may  deliver  to  the  purchaser  the  jiossession  of  the  whole  goods 

and  he  holds  them  as  joint  tenant  with  the  other  partners  or  owners, 
subject  lo  account  in  the  case  of  a  partnership  with  the  creditors  of 
the  firm.  If  after  goods  arc  seized  on  execution,  the  judgment  be 
reversed,  or  set  aside,  the  parly  against  whou)  the  execution  was  sued 
out  shall  have  restitution  of  the  money  levie<l,  but  not  of  the  goods 
tliemselves.  Bui  if  the  judgment  be  reversed  before  sale,  the  goods 
may  be  restored  to  the  party.*  When  the  judgment  is  set  aside  for  irreg- 

1  2K.  ri  ..r ,  fnrr!.  v  v   Htil!.    <  R  J,,liii.  C.?.t. 
t  1  ;  ^^  •■      :    I'.tl. 

»>■  .  '      .     117. 

i;.  LWiit'.  ..'>  1  w.iid.  «i. 

G      "     288.     • 


SALF.  OF  PKRSONAL  PROIM'JITV.  203 

uhritv,  restitution  where  necessary,  forms  [lart  of  iho  rule,  and  if  liie 
goods  or  n)oney  be  not  restored,  the  court  will  of  course  grant  an 
attachment.'  And  where  a  judgment  has  been  obtained  against  a  non- 
resident (IcCendant  bv  publication,  and  the  defendant  afterwards  appears 
and  defen<ls,  and  if  the  defendant  is  successful  and  the  judgment  or 
any  part  has  been  collected,or  otherwise  enforced,  such  restitution  may 
thereupon  be  compelled  as  the  court  directs  :  but  the  title  to  i>roperty 
sold  under  such  judgment  to  a  ))urchaser  in  good  faith  shall  not  be 
thereby  aHected.' 

CHAPTER   XXVII. 

SALE  OF  PERSONAL  TROrERTV. 

3  478.  After  a  levy  has  been  made,  if  the  defendant  will  not  pay 
the  debt,  it  is  the  sherilV's  duty  to  proceed  to  sell  the  properly  at  jiublic 
auction,'  for  he  cannot  deliver  over  the  defendant's  goods  to  the  creditor 
in  payment  of  the  execution,^  unless  it  be  current  gold  and  silver,  levied 
on,  which  shall  be  returned  as  so  much  collected.'  Nor  can  he  pay 
the  execution  and  retain  the  goods  himself.®  The  sale  may  be  made 
before  the  return  day,  or  after  it,  and  even  if  the  sherifl'  has  gone  out 
of  office,''  if  a  levy  was  made  before  the  return  day,  whether  the  execu- 
tion be  from  a  court  of  record,  or  one  issued  by  the  county  clerk  on 
the  transcript  of  a  justice's  judgment.* 

§  479.  It  has  been  seen  that  notice  of  the  sale  must  first  be  given." 
The  statute  declares  that  no  sale  of  any  goods  or  chattels  shall  be 
made  l)y  virtue  of  any  execution,  unless  previous  notice  of  such  sale 
shall  have  been  given  six  days  successively,  by  fastening  up  written  or 
printed  notices  thereof,  in  three  public  places  in  the  town  where  such 
sale  is  to  be  had,  specifying  the  time  and  place  where  the  same  is  to  be 
had.  In  computing  the  time,  the  day  on  which  the  notice  is  fastened 
up  should  be  excluded,  and  a  sale  on  the  sixth  day  thereafter  will  be 
valid."  The  notice  should  state  whether  the  sale  is  by  virtue  of  one 
or  more  executions  ;  for  if  the  officer  advertise  on  one,  and  afterwards 
another  comes  to  his  hands,  he  cannot  sell  under  it  also."  It  is  usual 
also  and  proper  to  state  the  court  from  which  the  execution  issued. 
The  notice  should  give  the  name  of  the  defendant,  at  least,  and  describe 
generally,  the  goods  to  be  sold,  and  designate  the  time  of  sale,  which 

'  Watson,  192.  «  Tidils"  Tr.  1052.  s  Col.  «&  Cai.  307. 

»  Code,  <>135.  7  2  Cainca,  2-13.                              7  Wend   388. 

3  2  R.  S.  2(59,  ^.36.  Sewell,  2o3.  »  Ante,  <j470. 

Id.  G17,  ^45,  4th  cd.  4  Whc.it.  503.  lo  2  R.  S.  366,  <321. 

Ante,  \j469.  1  Salk.  323.                              Id.  614,  ^21,  4th  cd. 

<  Tidds'  Pr.  1052.  Tidds"  Pr.  1052.  ii  3  Cow  334. 
5  2  R.  S.  .366,  ()18. 

Id.  616,  V)18,  4th  ed, 


'20A  SALE  01'  TKIISONAL  PROPKIITY. 

must  be  between  the  hour  of  nine  in  llie  morning  nnd  the  setting  of 
the  sun,'  nnd  niso  the  phiceof  sale,  which  must  be  within  the  territorinl 
ju^i    '  Tirer.     The   notice  must  l)C  sit^ned  by  the  sheriir. 

or  ;.  made  by  a  deputy,  ho  shall  sign  the  name  of  the 

sherilT,  and  his  own  as  deinity,  as  in  other  cases.  The  mode  of  giving 
noli«*e  of  the  postponement  of  a  sale  has  already  been  pointed  oul.* 

^  -180.  On  the  sale  of  personal  proj)crty,  sueh  property  must  be 
present  and  within  view  of  those  attending  such  sale.'  If  a  |)art  of  the 
goods  be  present,  and  a  part  arc  not,  the  sale  will  be  valid  as  to  those 
present.*  The  articles  shoultl  be  pointed  out  to  the  bidders,  ami  be 
sold  si>ecifir,ally  and  separately  in  such  lots  and  parcels  as  shall  be, 
best  calcuhiied  to  bring  the  hic;hest  price.*  Hut  a  stranger  has  no  right 
to  object  that  the  property  was  not  so  sold.*  Hut  where  the  property  is 
pledged  or  mortgaged,  the  sheriff  should  sell  it  all  together,  liiat  the 
purchaser  may  be  enabled  to  redeem.  And  where,  in  such  case,  the 
property  was  scattered  about  the  farm  where  the  sale  was  had,  and 
some  of  it  was  in  view  and  some  was  not,  but  the  officer  had  declared 
what  property  was  to  be  sold,  and  had  jioinled  it  out  to  those  in  attend- 
ance, it  was  held  to  be  within  view,  within  the  meaning  of  the  statute 
forbidding  the  sale  of  per.sonal  property  on  execution,  not  in  view/ 
The  officer  is  not  required  to  sell  goods  by  retail,  though  they  might 
bring  the  highest  price,  if  so  sold  ;  but  they  should  be  offered  in  such 
lots  and  parcels  as  will  best  suit  the  i)crsons  attending  the  sale.  And 
if  as  high  prices  may  be  obtained  by  selling  the  whole  in  one  parcel  they 
may  be  so  sold ;  and  so  if  they  have  been  offered  separately,  and  no  suffi- 
cient bid  has  been  made,  the  officer  may  sell  all  together  if  he  can 
obtain  an  adequate  price  therefor.  But  w  hatevcr  is  sold,  must  be  sold 
separately,  and  not  collectively  without  discrimination, or  no  title  will 
pass.  Thus,  if  an  officer  sells  thirteen  sheej)  of  a  flock,  without  desig- 
nating which,  otherwise  than  by  saying  the  "best  and  fattest," nothing 
will  pass.  And  where  an  officer  sells  hay  in  th6  stack,  no  title 
will  pass,  unless  he  separates  the  part  sold  at  the  lime.^ 

^481.  Where  goods  are  sold  upon  execution,  the  sheriff  should  be 
careful  to  have  a  full  and  accurate  account  kept  by  .some  competent 
jKjrson,  of  every  article  sold,  to  whom  sold,  and  the  j)rice  paid,  for  it  is 
not  of  unfrequent  occurrence  that  the  sheriff  is  recjuircd  to  give  an 
account  of  the  sales  made  by  him,  long  after,  and  to  account  for  the 
proceeds  thereof.  Unless  he  has  some  means  of  showing  what  the 
levy  and  sale  were,  he  is  at  the  mercy  of  either  the  plaintilFor  dcfcndnat 

'  AT»tf ,  '^Aa  i  1 J  .T„i,n  ooo  7  4  ponio,  171. 

t  y       '  -  -zn  ■■■  f.  Hill,  isj. 

» :  -  I'i  ;  'i  ..1.  s  ij  joiin,  .in-j. 

1m    .  .•.  v-j,  111,  .-l.  •UC-'w.  .,4.  4  Dftrb.  •tH4. 

17  John.  116.   IDarb.  4M.  11     "     173. 


OF  TUK  SALIC  OF  lU-AL  i:.sTAri:.  205 

in  tlie  execution,  who  in;iy  think  jiropcr  to  qucslion  the  correclne>.s  of 
his  return.  It  is  not  necessary  that  a  bill  of  sale  should  be  made  out  to 
f>urchasers  in  all  (tascs,  but  it  is  well  to  do  so.  And  in  the  case  of  a  sale  of 
slock  of  a  corporation  under  an  alla'-hment  a^'ainst  a  foreign  corpora- 
tion, non-resident,  or  absconding  or  concealed  defendants,  the  slierill'is 
required  to  execute  a  certificate  of  the  sale  thereof  to  the  purchaser.' 

CIIArTEIl  XXVIII. 

OF  THE  SALE  OF  REAL  ESTATE. 

^  182.  If  sufficient  goods  and  chattels  of  the  defendant  cannot  be 
fuuiiil  in  the  county,  to  satisl'y  the  execution  in  the  haiid.s  of  the  sherilf, 
he  must,  according  to  the  command  of  the  execution  (unless  it  be  an 
execution  issued  l)y  the  county  clerk  upon  a  justice's  judgment  for  less 
than  twenty- five  dollars  exclusive  of  costs  which  is  declared  not  to  be  a 
lien  upon  real  estate,'')  cause  the  amount  of  such  execution  to  be  made  of 
the  real  estate  of  the  person  against  whom  the  judgment  was  rendered, 
which  such  person  shall  have  had  in  the  county  at  the  time  of  docketing 
such  judgment,  or  at  any  time  afterwards,  in  whose  hands  soever  the 
same  may  be.^  Or  if  the  execution  be  issued  upon  a  judgment  rendered 
against  any  person  as 'ter-tenant,  heir  or  devisee,  of  any  deceased 
person,  the  sherifl"  shall,  according  to  the  command  of  such  execution, 
cause  the  amount  thereof  to  be  made  of  the  real  estate  whereof  the 
ancestor,  testator,  or  person  was  seized  at  the  time  the  same  real 
estate  became  liable,  or  at  any  time  afterwards,  or  at  the  time  of  the 
death  of  such  ancestor,  testator  or  other  deceased  person.^  If  the  suit 
in  which  the  judgment  was  recovered  was  commenced  by  process  of 
attachment,  issuing  from  a  court  of  record,  against  a  foreign  corpora- 
tion, and  real  estate  was  attached -by  the  sherifl*  the  lien  of  the  judg- 
ment dates  from  the  time  the  lands  w'ere  so  attached.*  Where  an 
appeal  has  been  brought  upon  a  jmlgment  in  a  court  of  record,  and 
the  clerk  has,  under  the  direction  of  the  court,  entered  in  the  docket 
that  the  same  is  secured  by  appeal,  the  judgment  during  such  appeal 
shall  cease  to  be  a  lien  ujmn  the  defendant's  real  projiertv,  as  af^ainst 
purchasers  and  mortgagees  in  good  faith.'  And  so  where  an  execu- 
tion had  been  returned  satisfied,  and  an  entry  made  in  the  docket 
pursuant  to  the  statute,  anil  the  return  was  afterwvards  vacated  bv  order 
of  the  court,  it  was  held  that  lands  sold  by  the  execution  debtor  to  a 
bona  fide  purchaser,  after  entry  in  the  docket,  and  before  the  vacature 
could  not  be  affectecf  by  the  judgment.'     And  it  is  provided  that  if  any 

'  Ante,  <)376.  sub.  2.  <  2  R.  S.  .308,  y25.  s  Coflo  ^i'^S'' 

1.1.  ()390,  sub.  2.  M.  Gir,,  ^34,  -Jth  cd.  7  4  Hni,  619.' 

a  Code,  (^63.  3  6  Hill.  3G2. 

3  2  R.  S.  367,  *^24.  Antc,ft390. 

Id.  616,  ^33,  4th  cd. 


206  OF  Till-:  SALH  01-   RKAL  ESTATE. 

person  taken  in  execution  against  his  body,  shall  die  while  so  charged, 
new  executions  may  be  issued  ngainst  the  goods,  chattels,  lands  and 
tenenienls  of  tli<-  I.  in  the  same  manner  ns  if  he  hati  never  been 

charged  in  exe>  i5nt   such   new  executions  shall  not   be  levied 

upon  bv  real  estate  which  the  deceased,  alter  the  judginent  rendered 
against  him  shall  have  sold  in  good  faith  ;  nor  shall  such  new  execu- 
tions be  levied  upon  any  real  estate  which  shall  have  been  actually  sold 
under  any  other  or  prior  or  subsequent  execution  against  such  person.' 
Where  a  mort<;age  is  given  for  the  ])urclmse  money,  a  judgment  older 
than  such  mortgage  becomes  a  lien  subsefjucnt  to  su<-h  mortgage.' 
And  where  one  conveys  to  another,  who  conveys  to  a  third  party,  who 
gives  his  mortgage  to  the  first,  the  whole  being  one  transaction,  a  prior 
judgment  against  the  second  parly  does  not  attach.'  As  a  judgment 
is  a  lien  for  but  ten  years  as  against  other  creditors,  if  the  lands  are  sold 
on  two  executions,  and  one  of  the  judgments  on  which  it  is  sold  is  over 
ten  vcars  old,  though  the  execution  was  delivered  to  the  sherilV  within 
the  ten  years,  the  proceeds  of  the  sale  must  be  first  applied  to  the  second 
execution.* 

^  18.3.  It  may  be  said  generally,  thai  all  the  interest  of  a  defendant 
in  real  estate,  however  slight,  may  be  sold  on  execution  against  him. 
The  interest  of  one  in  possession  of  land  may  be  so  sold,*  if  such  pos- 
session is  not  under  a  contract  for  the  purchase  thereof,  and  which 
contract  gives  the  right  of  possession.'  And  if,  in  such  case,  the 
contract  is  silent  about  the  possession,  the  defendant's  possession  will 
not  be  presumed  to  be  under  the  contract,  but  will  be  referred  to  some 
other  ri'jht  or  contract,  and  will  be  deemed  such  right  and  interest  in 
land  as  may  be  sold  on  execution.^  Where  one  is  in  possession  of  land 
under  a  contract  for  the  purchase  thereof,  and  there  is  a  judgment 
against  him,  and  he  afterwards  performs  the  contract  and  has  the  land 
conveyed  to  another,  the  judgment  will  be  a  lien  upon  the  land.*  The 
estate  of  a  tenant  by  the  curtesy  initiate  may  be  sold  and  redeemed  as 
real  estate."  So  the  estate  of  a  tenant  for  life,  or  for  years,  may  be 
sold  on  execution ;  but  not  the  estate  of  a  tenant  at  will  or  by  suller- 
ance,  which  is  declared  to  be  but  a  chattel  interest,  and  not  liable  as 
such  to  sale  on  execution.'"  A  rent  reserved,  even  where  there  is  a 
right  of  distress  and  reentry,  cannot  be  sold /on  execution."  The 
interest  of  the  defendant  in  lands  mortg.nged  by  him,  whether  the  morl- 

5  GHill,  G2.').  "  1  Weiiil.  4C2. 

«  1  It.  S.  711,  <y\.  0  Cow.  KS. 

'2  H.  H.  15;i,  v>l,  Jtli  1(1.        »  2  C<.\v.  WX 
r,  Hill,  525.  10  r.iigo,  662.  '<>  1  II.  S.  722,  v)5. 
2  IJarh.  Ch.  158.  2  U.  S.  1H2,  ^5,  4th  c>\. 

»  0  n.irl*.  110.  Anlo,MI2. 

;JI*.ii(,'o,  221.  "4  Uomo,  406, 

2  iinrh.  2W.  7  W.mkI.  103. 

C  Hill,  My. 


1  2  I' 
I 

It. 

ItlM'.l. 

»  1  i- 

;6,  -Ith  f.<l. 

«  5  ■ 

7  Pftlgc,  187. 

18 

•,21. 

or  TIIH  SALI-:  UF  RICA/.  lOSTATK.  207 

gafrc  lias  Lteroiiio  fuiTeitcd  c»r  nof,  iiiny  he  sold,  if  he  rcinains  in  ))08.se.s- 
sion.'  liut  it  is  othiTwiso  if  the  judifincnt  be  for  the  iDoiieys,  or  any 
part  thereof,  secured  hy  llie  mortga^^c,''  lor  it  is  dcdarcd  that  whore  a 
jiidgiiient  shall  he  recovei'cd  lor  a  del)(,  sei-ured  hy  iiiorli^aL'o  of  real 
estate,  or  for  any  |)a)t  of  such  debt,  it  shall  not  belawlul  for  the  sherill 
to  sell  the  c(|uity  of  redemption  of  the  mortgagor,  his  iicirs  or  assigns 
ill  such  estate  by  virtue  of  any  execution  upon  such  judgment.  An<l 
whenever  any  execution  against  the  property  of  the  defendant  shall  be 
issued  upon  such  judgment,  the  plaintiif's  attorney  shall  endorse  thereon 
a  brief  descri])tion  of  the  jiremises  mortgaged,  referingto  the  i)age  and 
book  of  the  record  in  which  such  mort^jage  is  recorded,  with  a  direc- 
tion  to  the  sherilf  not  to  levy  such  execution  upon  the  said  premises, 
or  any  part  thereof;  and  if  sui-h  execution  shall  not  be  collected  of 
the  other  property  of  the  defendant,  the  sherilV  shall  return  the  same 
unsatisfied,  in  whole  or  in  part  as  the  case  may  require.^  The  omis- 
sion of  the  attorney  to  make  the  indorsement  that  such  property  is 
exempt,  will  not  render  a  sale  thereof  valid. ^  Lands  held  in  tVust  for 
one  may  be  sold  on  execution  against  him  in  the  cases,  and  in  the 
manner  prescribed  in  the  fir.st  chapter  of  the  second  i)art  of  the  Revised 
Statutes.'^  But  no  such  sale  can  be  made  unless  the  defendant  has  the 
whole  beneficial  interest.*  Where  there  is  a  resulting  trust  in  favor 
of  creditors,  the  land  may  be  sold  on  the  execution  of  such  creditors.' 
Though  lands  are  held  adversely,  a  sale  thereof  on  execution  wiW  be 
valid.  Where  land  has  been  sold  on  execution,  but  does  not  brinfr  sufli- 
cient  to  satisfy  the  judgment  and  it  is  redeemed  by  the  defendant  or 
by  a  grantee,  it  may  be  sold  again  to  satisfy  the  balance,  though  the 
return  day  has  passed  and  the  term  of  oiRce  of  the  sherilf  has  expired.^ 
<5  484.  The  following  real  estate  is  exempt  by  statute  from  sale  upon 
execution : 

1.  A  seat  or  pow  occujiied  by  a  householder  or  his  familv  in  anv 
house  or  place  of  ])ul»lic  worship  :' 

2.  Land  set  apart  and  a  portion  of  which  has  been  actuallv  used 
for  a  family  or  private  burying  ground,  shall  not  be  subject  to  lew  and 
sale  by  any  execution  or  other  legal  process  whatever.  But  such 
exemption  shall  not  extend  to  more  than  one-fourth  of  an  acre  of  land, 
nor  to  any  building  or  erection  other  than  a  vault  or  other  place  of 
deposit  for  the  dead  ;  nor  unless  the  owner  shall  before  the  sale,  have 
made,  certified  and  acknowledged  in  the  manner  required  for  the 
acknowledgment  of  deeds,  a  description  of  said  lands,  and    procured 

»  1  Caines'  Ca.  47.  *  G  Hill,  13.  ■  i  Dcnio,439.  11  Barb  408 

s  2  R.  S.  368,  <)S\.     •  5  2  R.  S.  :]0S,  v2G.  10  Paigo,  502. 

Id.  017,  ^340,  4th  ed.  Id.  01t5,  <yio,  4th  cd.  3      "     478. 

C  Uill.  1-5.  3  Earb.  6o5.  s  6  Hill,  228.  3  Barb.  70. 

3  2  R.  S.  368,  C\Cv31-33.  s  3  Viusc,  478.  »  2  R.  S.  367,  ^22. 

Id.  617,  <\\)40^2,  4th  cd.  17  Jolm.  n02.  Id.  614,  ^22,  4th  ed. 


208  OF  TIIK  SALi:  OK  lUCAL  HSTATK. 

the  same  to  be  recorded  in  llie  olliro  of  the  clerk  of  llu;  tuimty  in 
whicli  said  land  k  silualrd,  and  said  clerk  shall  record  the  s^aine  in  the 
proper  book  for  recordin      '      '     and  in  the  same  manner.' 

3.  Ill  addition  to  llie  j  now  exempt  by  law  from  sale  under 

execution,  there  shall  be   exempt   hy^aw  from  sale  on  execution,  for 
debts  r.mtracied   afier  the  first  day   of  January,   1851,   the  lot  and 
buililiiigs  thereon,  occupied   as  a  residence,  and  owned  by  the  <lebtyr, 
being  a  householder  and  liavini^  a  family,  to  the  value  of  one  thousand 
dollars.     iSu<'h  exemption  ."^hail  continue  afier  the  death  of  such  house- 
holder, for  the  benefit  of  the  widow  and  family,  some  or  one  of  them 
continuing  to  occupy  such  homestead  until  the  jjoungest  child  becomes 
twenty-one  years  of  age.  and  until  the  death  of  the  widow.     And  no 
release  or  waiver  of  such  exemption  shall   be  valid   unless  the  same 
shall  be  in  writing,  subscribed  by  such  householder,  and  acknowledged 
in  the  same  manner  as  conveyances  of  real  estate  are  by  law  required 
to  be  acknowledged.     To  entitle  any  property  to  such  cxemi)lion,  the 
conveyance  of  the  same  shall  show  that  it  is  designed  to   be  held  as 
a  homestead,  under  the  cxcm))tion  act,  or  if  already  purchased,  or  the 
conveyance  does  not  show  such  design,  a  notice   that  the  same   is 
designed  to  be  so  held,  shall  be  executed  and  acknowledged  by  the 
person  owning  the  said  property,  which  shall  contain  a  full  (iescri|>tion 
thereof,  and  shall  be  recorded  in  the  office  of  the  clerk  of  the  county 
in  ^flJich  the  said  property  is  situated,  in  a  book  to  be  provided  for  that 
j)urposc,  and   known  as  the  "  Homestead  Exemption  Book."     But  no 
properly  shall   be  so  exempt   for  a  debt  contracted   for  the  purchase 
thereof,  or  prior  to  the  recording  of  the  aforesaid  deed  or  notice.     If, 
in  the  opinion  of  the  sherifl'  holding  an  execution  against  such  house- 
holder, the  premises  claimed  by  him  or  her  as  exempt,  are  worth  more 
than  one  thousand  dollars,  he  shall  summon  six  (jualified  jurors  of  his 
county,  who  shall   upon  oath,  to  be  administered   to  them  by  such 
sheriflj   appraise  said   ])reniises,  and  if  in  the  opinion  of  the  jmy,  the 
properly  may  be  divided  without  injury  to  the  interests  f>f  the  j)arties, 
they  shall  set  ofi'  so  much  of  said   premises,  including  the  dwelling 
house,  as  in  their  oj)ini<:)n,  shall  be  worth  one  thousand  dollar.^,  ai.d  the 
residue  of  said  premises  maybe  advertised  and  sold  by  such  sherifi".   In 
case  the  value  of  the  premises  shall,  in  the  opinion  of  the  jury,  be  more 
ill  '  I  floll.irs,  and  cannot  he  divided  as  above  provided, 

ti'  .  i  sign  an  appraisal  of  the  value  thereof,  and  deliver  a 

copy   thereof  to  the  execution  debtor,  or  to   some  of  his  family,  of 
8"        '  'ud  the   nature   thereof,  with  a  notice   thereof 

a*'  L'xcciilitiu  (Icliiiir  .shall  ].a\-  fo  ilir>   slicrilV  the 


1,2 


OF  'i'lir:  sALi-:  i)i'  ki;al  hsjati;.  209 

suipliis  over  and  above  ono  thousand  dollars,  williiii  sixty  days  thereafter, 
that  such  premises  will  bo  sold.  In  case  such  surplus  shall  not  be  paid 
within  said  sixty  days,  it  shall  be  lawful  for  the  sherifTto  advertise  and 
sell  said  premises,  and  out  of  the  j>roceeds  of  surh  sale,  to  pay  such 
execution  debtor  the  sum  of  one  thousand  dollars,  which  shall  be 
exempt  from  execution  for  one  year  thereafter,  and  ap|)ly  the  balance 
on  such  execution  ;  but  no  sale  shall  be  made  unless  a  greater  sum 
than  one  thousand  dollars  shall  be  bid  therefor,  in  which  case  the 
sherift'  may  return  the  execution  for  want  of  property.' 

^185.  No  levy*  ujmn  land  is  necessary  under  an  execution.  The 
judgment  itself  is  the  lien,  and  the  execution  is  but  the  means  of 
enforcing  such  lien.  Giving  notice  of  the  sale  required  by  the  statute, 
under  the  execution,  is  suflicient.* 

^  ISG.  The  time  and  place  of  holding  any  sale  of  real  estate  pursuant 
to  any  execution,  shall  be  publicly  advertised,  previously,  for  six  weeks 
successively,  as  follows : 

1.  A  written  or  printed  notice  thereof  shall  be  fastened  up  in  three 
public  places  in  the  town  where  such  real  estate  shall  be  sold,  and  if 
such  sale  bo  in  a  town  diflerent  from  that  in  which  the  premises  to  be 
sold  are  situated,  then  such  notice  shall  also  be  fastened  up  in  three 
public  places  of  the  town  in  which  the  premises  are  situated : 

2.  A  copy  of  such  notice  shall  be  printed  once  in  each  week  in  a 
newspaper  of  such  county,  if  there  be  one  : 

3.  h'  there  be  no  newspaper  printed  in  such  county,  and  the  premises 
to  be  sold  are  not  occupied  by  any  person  against  whom  the  execution 
is  issued,  or  some  person  holding  the  same  as  tenant  or  purchaser  under 
such  person,  then  such  notice  shall  be  published  in  the  state  paper  one.' 
in  each  week.^ 

S  487.  In  every  such  notice,  the  real  estate  to  be  sold  siiall  be 
described  with  common  certainty,  by  setting  forth  the  name  of  the 
township  or  tract,  and  the  numl)er  of  the  lot,  if  there  be  anv,  and  if 
there  be  none,  by  some  other  apjiropriate  descrii)tion.* 

g  488.  When  real  estate,  oflered  for  sale  by  virtue  of  any  execution, 
shall  consist  of  several  known  lots,  tracts  or  parcels,  such  lots,  tracts 
or  parcels  shall  be  separately  exposed  for  sale  ;  and  if  any  person 
claiming  to  be  the  owner  of  such  real  estate,  or  of  such  lots,  tracts  or 
parcels,  or  either  of  them,  or  claiming  to  be  entitled  by  law  to  redeem 
any  such  portion,  shall  require  such  portion  to  be  exposed  for  sale 
separately,  it  shall  be  the  duty  of  the  shefifT  to  expose  the  same  for 
sale  accordingly.     No  more  of  any  real  estate  shall  be  exposed  foi- 

«  2  R.  S.  615,<J(>2C-30, 4th  cd.  3  2  R.  S.  368,  (>84.  <  2  R.  S.  369  $35. 

Laws  1850,  ch.  2G0,  Ci^l-S.        Id.  G17,  (;43,  4th  cd.  Id.  617,  644,  4th  cd. 

« 6  Hill,  231.  ■  ^ 

28 


210  OK  rWE  SAI.i:  OK  K.KAL  KSTATR. 

sale  than  shull  appear  iirci'ssary  to  satisfy  tlio  execution.'  If  ihc  shorifT 
sells  more  than  what  in  llie  exercise  of  a  sound  discretion,  will  appear 
sutlicient  to  satisly  tlir  execution,  if  it  ran  be  separated,  the  sale  will 
bo  set  aside  ;  and  if  there  is  any  almse,  the  tdVu'er  will  be  decroeil  to 
pay  costs."  The  estate  and  interest  of  several  defendants  in  a  parcel 
or  land  held  in  coninmn  should  bo  sold  tou;elher  and  not  separately, 
unless  some  one  elainiinii  to  be  the  owner  of  soiue  portion  of  the 
estate,  or  clainung  to  be  entitled  by  law  to  redeem  any  portion,  shall 
require  su<-h  portion  to  be  sold  separately,  when  it  shall  be  so  sold.' 

<5  l^S*.  Upon  the  sale  of  any  premises,  if  they  be  of  leaschohl  pro- 
perty, where  the  lessee  or  assignee  of  the  lease  shall  not  be  possessed 
of  ;it  least  five  years  uiie\|iired  term  of  the  lease  at  the  time  of  the  sale, 
there  will  be  no  rii^ht  of  redemption,  and  the  sherilV  must  execute  a 
conveyance  thereof  to  the  j)urchaser.*  liut  if  the  huuls  sold  are  held 
in  any  other  way,  the  olVicer  making  the  sale  shall  make  out  and 
suljscribe  duplicate  certificates  of  such  sale,  containing, 

1.  A  partic^ular  description  of  the  premises  sold: 

2.  The  jirice  bid  for  each  distinct  lot  or  parcel : 

3.  The  whole  consideration  money  j)aid  : 

4.  And  the  time  when  such  sale  will  become  absolute,  and  the  pur- 
chaser will  be  entitled  to  a  conveyance  pursuant  to  law. 

One  of  said  certificates  shall,  within  ten  days  after  such  sale,  be  fded 
in  the  office  of  the  clerk  of  the  county,  and  the  other  shall  be  delivered 
to  the  purchaser.  If  there  be  two  or  more  purchasers,  a  certificate 
shall  be  delivered  to  each.^  But  the  neglect  of  the  sheriff' to  file  the 
certificate,  will  not  render  the  sale  void.  The  statute  in  this  respect, 
is  direcl»jry  merely,  and  such  filing  is  not  a  condition  precedent.' 
Where  the  certificate  is  irregular,  erroneous  or  defective,  the  court 
will  on  motion,  allow  the  sheriff' to  amend  the  same,  on  his  own  appli- 
cation, or  of  any  |>arty  in  interest/ 

§  490.  Any  oflicer  who  shall  sell  any  real  estate,  without  the  previous 
notices  recjuired,  or  otherwise  than  in  the  manner  prescribed  in  the 
statute,  and  hereinbefore  mentioned,  shall  forfeit  one  thousand  dollars 
to  the  parly  injured,  in  addition  to  any  damages  which  such  party  may 
gUMtain." 

5  101.  The  title  will  pass  in  such  cases,  though  the  sheriff'  may  bo 
liable  to  the  party  aggrieved  for  any  damaLTcs  he  may  sustain   by  rea- 

•  2  R.  H  I  J  i:   s   '.Jt,  <^HH,  Jth  H.        «  6  Cow.  270. 

M  ^'1  1                  I..*     \^.:,ih.U;-2,(A.  7  1  Cow. '^18,  430. 

I  7  llill.l.^ti,    17  Wuiul.  C71.  4  Cow.  416.     5  Cow.  .18. 

L                      9  Cow.  071.        -JO  W.  ii.i    no.  7Cow.  :JG7.    IHWlmkI.GH. 

t  ...  ....   ,,_:  1  I'.,         ;-  •  8  o  u.  H.  iW.},  <y]7. 

I  J..l.tiCI»  W)2.  4                       ^  Id.  017,  vlO,  4tli  cd. 

•  6  John.  Ch.  411.  •211 ..li:,  4.1, 

•  o  Uarb.  606.  Id.  Olo,  V\^i,  02,  4lb  cd. 


OK  Trii'.  SAIJ-:  OF  URAL  ivS'iwri:.  211 

son  of  nny  wilful  omission  or  n(\i,'loct  on  his  j);iil.'  Nor  will  llie  tillo 
of  the  inn-cluiscr  be  iilli'ctcd  by  auylhint^  that  occurs  bclwccn  the  parlies 
siibsc(inent  to  the  sale,  if  he  is  not  a  party  thereto,  or  to  the  jiul^ment.' 
Nor  (Iocs  his  title  depend  upon,  nor  can  it  bo  aflected  by  the  shfrilfii 
return  to  the  pro(!es3,  whether  such  return  be  incorrect,  irregular,  or 
insuirieient,  or  whether  he  make  any  retin*n  or  not.  It  is  enough  for 
the  puri'haser  ihnt  the  ollicer  had  authority  to  sell,  and  did  sell  and 
convey  to  him.^  Nor,  as  has  been  seen,  is  it  material  whether  the 
sheriH' tiled  the  certificate  of  sale  required  by  the  statute.* 

(S  11)-.  When  there  are  sur|)lus  moneys  arising  from  the  sale  of 
lands  on  execution,  those  having  liens  upon  the  lands  sold,  have  the 
same  liens  upon  the  sur|>lus  moneys  which  they  had  upon  the  lands 
previous  to  strch  sale.*  While  surplus  moneys  are  in  the  hrmds  of  the 
sheriir,  they  are  subject  to  the  control  of  the  court,  and  if  another 
execution  comes  to  the  sheriff's  hands  before  the  suri)lus  moneys  are 
disposed  of,  it  will  direct  how  to  ap|»ly  them  on  such  execution."  And 
a  junior  judgment  creditor  is  entitled  to  an  order  of  the  court  for  a 
surplus  remaining  in  the  hands  of  the  sheriU'on  the  sale  of  the  debtor's 
real  estate,  after  satisfying  the  senior  judgment  under  which  the  sale  was 
had,  and  is  not  confined  to  the  remedy  of  redemption.^  If  no  such 
order  is  made,  the  shcriirshould  pay  over  the  surplus  moneys  to  the  clerk 
of  the  court  where  the  execution  is  returnable,  and  leave  the  parlies 
in  interest  to  apply  to  the  court  for  the  proper  distribution  thereof 

§  1U3,  If,  as  has  been  seen,  the  premises  sold  be  held  by  lease,  of 
which  there  is  not,  at  the  lime  of  the  sale,  an  unexpired  term  of  at 
least  five  years,  there  will  be  no  right  of  redemption,  and  the  purchaser 
at  the  sale  will  be  entitled  to  a  conveyance  by  the  sherilT.  and  crmse- 
quently  to  the  immediate  possession  of  the  premises  sold.*  But  if  the 
lessee  or  his  assignee  shall  be  po.ssessed  of  at  least  five  years  unexpired 
term  of  the  lease  at  the  time  of  the  sale  ;'  or  if  the  land  is  held  bv  the 
defendant  in  any  other  way,  his  right  and  title  thereto  shall  not  be 
divested  by  such  sale,  until  the  expirntion  of  fifteen  months  from  the 
time  of  such  sale;'"  thouLrh  such  right  of  po!-«session  may  be  reached  by 
a  creditor's  bill,  or  by  proceedings  supplementary  to  the  execution." 
And  it  is  provided  by  statute  that  any  person  entitled  to  the  possession 
of  lands  or  tenements  sold  under  execution,  may  mitil  the  expiration  of 
fifteen  months  from  the  time  of  such  sale,  use  and  enjoy  the  same  as 
tbllows,  without  being  deemed  guilty  of  waste  : 

•  20  Wciul.  f.22.  5  Barb.  5Go.  s  G  B.irl).  470.  lo  2  R  S  .^7:1  uCA 

»  H  John.  301.  s  1  vvcrul.  87.  Id.  fyJl,  ^71,  4th  cd. 

3  2  Cow.  &  Hills  noU'S,  ]094.  -  18  Wc-nd.  628.  n  3  IK-nio  '79. 

1  John.  Ch.  0O2.  8  Anlo,  \)489.  10  Paige  548 

4  Who.xt.  .306.  9  2  R.  S.  (521,  ^)88.  Code,  u2'J2,  &c. 

oCow.  52'.).  L.nv.s  18;17,  ch.  462,  <\l 

«  5  Cow.  270.  7  Hill.  150. 


2\2  OF  Tin-:  SALL'    ctl'  RICAL  KSTATK. 

1.  Wo  may.  in  nil  cases,  use  and  enjoy  the  promises  sold,  in  the  like 
manner  and  for  the  like  purposes,  in  and  for  whirh  they  were  used  and 
applied,  prior  to  v     '       '  .  doin:^  no  jirrmiinent  injury  to  the  freehold  : 

2.  If  the  prein  1  were  huiMings,  or  any  other  erections,  he 
may  make  necessary  repairs  thcrelo;  but  he  shall  make  no  alterations 
in  the  form  or  structure  thereof: 

3.  If  the  premises  sold  were  land,  he  may  use  and  improve  the  same 
in  the  ordinary  course  of  husbandry ;  but  he  shall  n(»l  be  entitled  to  any 
crops  crowiiii;  thereon,  at  the  expiration  of  the  s.iid  fifteen  months: 

•1.  He  may  apply  any  woo<l  or  timber  on  such  land  to  the  necessary 
reparation  of  any  fences,  buildings  or  erections,  which  may  have  been 
thereon  at  the  time  of  sale: 

5.  If  the  land  sold  is  actually  occupied  by  such  jiersoiv  he  iii,i\  l:iko 
necessary  firewood  therefrom,  for  the  use  of  hia  family.' 

5  49 1.  If  the  person  against  whose  jiroperty  the  execution  .shall  have 
been  issued,  or  any  person  who  may  be  in  ])Ossession  of  the  premises 
sold,  shall  at  any  time  after  the  sale  of  such  premises,  and  before  the  lime 
.Jlowed  for  redeeming  the  same,  do  any  act  of  waste  thereon,  or  shall 
threaten  to  make  preparations  to  commit  waste  thereon,  the  purchaser 
of  such  premises  or  his  authorized  agent,  may  apply  by  petition  to  any 
justice  of  the  supreme  court,  or  to  the  county  judge  of  any  county,  for 
an  order  restraining  such  wrong  doer  from  the  commission  of  any 
farther  waste  on  such  premises.  If  such  officer  shall  be  satisfied  by 
due  proof  that  waste  has  been  actually  committed  by  the  person  against 
whom  the  application  is  made,  or  that  the  same  has  been  threatened, 
or  that  i)reparations  for  (committing  it  have  been  made  by  such  person, 
such  officer  shall  grant  an  order  restraining  such  person  from  the  com- 
mission of  any  waste  on  the  premises  so  sold.  If  such  person  shall, 
after  the  service  on  him  of  a  copy  of  such  order,  commit  any  waste  in 
violation  of  such  order,  he  shall  be  liable  to  be  proceeded  against  and 
punished  in  the  same  manner  as  for  a  violation  of  an  injunction  to  stay 
waste.  When  complaint  shall  be  made  of  the  violation  of  any  such 
order,  the  court  or  ofllcer  may  order  notice  to  be  given  to  the  j>erson 
■  >iiil»lained  of,  to  show  cause  why  he  should  not  be  committed,  if  from 
ill--,  circumstances  of  the  case  they  shall  judge  such  ordi-r  expedient. 
And  upon  satisfactory  i)roof  of  such  violation,  such  coint  or  officer 
thall  issue  a  warrant  to  the  sherifl'of  the  county,  reciting  such  order 
.'Uid  th('  proof  of  the  violation  thereof,  and  thereby  commanding  such 
sherifTlo  commit  such  defendant  to  close  confinement,  for  such  term  of 
time,  not  more  than  one  year,  as  shall  be  (leeme<l  exp(>dient,  and  the 
shcriir  shrill  execute  such  Warrant  acconiin'jly,  and  shall  com:.iit  the 

!  2  R  ^    ::.-.'..  '/- 
Id  r.'j.-.,  <,\1,  llh  fd. 


0 


OF  rriK  SALE  or  rral  kstati:.  213 


person  named  lliciein,  without  allowin^i,'  iiim  the  liberties  of  the  jail. 
Such  warrant  may  be  superceded,  and  su(di  person  may  be  discharged 
by  the  court  or  oificer  committing  him,  upon  receiving  a  bond,  in  such 
penalty  and  with  su<-h  suirioient  sureties,  as  such  court  or  ofTicer  may 
approve,  to  the  i)erson  ai)j)lying  for  the  warrant  of  commitment,  con- 
ditioned tljat  such  prisoner  shall  not  commit  any  waste  on  such  prem- 
ises; which  bond  shall  be  delivered  to  such  ajiplicant  for  his  use, 
and  lobe  prosecuted  by  him  for  any  breach  of  the  condition  thereof.' 
(5  495.  Though  the  defendant  in  the  execution  is  entitled  to  the 
possession,  and  the  rents  and  profits  of  lands  sold  on  execution  until 
the  expiration  of  the  time  for  redemption,  yet  if  such  premises  are  not 
redeemed  by  the  debtor,  his  heirs  or  assignees,  and  a  deed  is  executed 
in  pursuance  of  the  sale,  tire  grantee  in  such  deed,  shall  be  deemed 
vested  with  the  legal  estate  from  the  time  of  the  sale  on  execution,  for 
the  purpose  of  maintaining  an  action  for  waste  or  any  other  injury  to 
such  real  estate,  committed  on  such  premises  after  such  sale.' 

^  lUG.  At  law  a  judgment  is  a  lien  on,  and  attaches  itself  to  the 
whole  legal  estate  which  the  debtor  has  in  the  land  at  the  time  of  the 
docketing  of  the  judgment  whatever  that  right  is.  And  if  it  is  but  for  the 
life  of  the  debtor,  the  purchaser  on  sherifl''s  sale  holds  in  subordination, 
and  not  in  hostility  to  the  title  of  the  reversioner.^  And  this  lien  cannot, 
without  the  assent  of  the  creditor,  be  detached  or  displaced  by  any  species 
of  alienation,  or  by  any  subsequent  event  whatever.  Thus  where  a 
judgment  is  obtained  against  one  before  marriage,  a  purchaser  at  sheriff's 
sale  under  the  execution  upon  such  judgment  takes  the  premises  free 
from  right  of  dower  of  the  widow  of  such  judgment  debtor,  though 
the  premises  were  sold  after  the  marriage.*  ThectTect  of  the  judgment 
is  the  same  in  equity,  except  that  a  puixhaser  under  the  judgment  will 
take  the  laud  subject  to  any  equitable  claim  thereon,  which  was  prior 
in  point  of  time  to  the  judgment,  and  of  which  the  purchaser  had 
notice  at  or  before  the  sheriff's  sale  of  the  property. '  Thus  he  will 
take  the  land  subject  to  prior  contract  for  the  sale  thereof,  or  subject 
to  an  agreement  to  give  a  mortgage  thereon,  or  subject  to  the  payment 
of  the  purchase  money,  where  the  seller  retains  a  lien  for  the  payment 
of  the  same."  On  a  sale  of  lands  the  sheriff  can  only  deliver  the  lef^al 
possession,  and  in  order  to  obtain  actual  possession,  where  it  is  refused 
by  the  defendant,  the  purchaser  must  resort  to  the  statute  remedy  of 
summary  proceedings  to  obtain  possession  of  lands.^ 

'  2R.  S.  837,  ()\>23-29.  s  3  Sold.  525.  "  2  R  S  51*^  (>''8 

Id.  594,  ^>()18-24,  4th  ccl.  18  John.  04.  Id.  16G,  \\28,  4th  cd. 

«  2  R.  S.  373,  ^)61.  <  3  Paige,  123.  13  Wend.  31. 

Id.  G21,  iy\,  4th  ed.  s  3  Paige,  123.  17      "     46G 

2  R.  S.  3.3G,  <y20.  1       "     12-5.  20      "       22. 

Id.  593,  \^15,  4th  od.  «  1  Paige,  125. 
6  Paige,  65.  3  Dcuio,  70. 


214  OF  TIIl%  SALE  OF  RHAL  FSTATF. 

,3  lli7,  Bui  il"  the  jud^menl  be  void,  or  llie  execution  void  and  not 
merely  voidable,  and  is  subsequently  set  aside  ;'  or  Ibe  judi;nicnt  was 
entered  after  the  dealh  «»f  the  defendant  ;"  or  the  land  was  exempt 
from  sale  on  execution,*  the  purchaser  at  sherill's  sale  acquires  no  title. 
So  too,  where  the  judi»ineiU  lias  been  paid  or  otherwise  satisfied,*  or 
where  the  sheriff  neglects  to  return  an  execution,  and  is  fined  the 
amount  thereof,  nnd  causes  another  to  pay  the  same  and  take  an 
assiijnment  for  his  benefit,  a  sale  of  the  real  estate  of  the  defend- 
ant by  such  sheriff  will  be  void.'  And  so  loo,  if  the  lands  are  insuffi- 
ciently ilescribed  in  the  notice  of  sale,  as  where  they  are  desifjjnated 
merely  as  '*  all  the  lands  and  tencnients  of  the  defendant  and  being  in 
the  nardenburtjh  patent,"  the  sale  will  be  held  voiil  for  uncertainly.' 
These  arc  cases  where  the  sale  is  abs<»lutely  void.  In  others  the 
sale  will  be  set  aside,  if  there  is  any  abuse  of  the  powers  of  the 
sheriff  in  making  the  sale,  amounting  to  a  iVaud  upon  any  of  the  par- 
ties, as  where  ten  thousand  dollars  worth  of  real  estate  was  sold 
together  to  satisfy  a  judgment  of  one  hundred  dollars,  and  the  prem- 
ises were  so  situated  that  a  portion,  which  would  probably  have  brought 
sullicient  to  satisfy  the  judgment,  could  conveniently  have  been  sold 
separately.'  And  so  a  sale  was  set  aside,  where  on  an  execution  for 
ten  dollars  and  twenty -five  cents,  the  sheriff  sold  two  lots  containing 
four  hundred  and  forty-six  acres,  a  m<iiety  of  which  belonged  to  the 
defendant,  and  was  worth  eight  hundred  dollars,  f  )r  the  sum  of  thir- 
teen dollars.'  And  if  the  sheriff  sells  together,  under  the  general 
description  of  a  lot  of  land  of  a  certain  number,  which  is  in  truth 
divided  into  separate  farms,  the  court  will  set  aside  sutrh  sale.* 

^  198.  As  a  general  rule,  a  sale  of  lands  to  a  bona  fide  purchaser, 
under  an  execution  upon  a  judgment  against  the  owner  thereof,  where 
such  l.inds  are  not  exempt  from  sale  of  execution,'"  will  not  be  avoided 
though  (he  judgment  bo  reversed  for  error."  'I'he  revisers  of  the 
statutes,  however  conlemplate  that  a  case  may  occur,  where  a  sale 
would  be  avc^idcd  by  the  reversil  of  the  judgment.'"  And  hence  they 
have  provided  for  the  relief  of  one  who  has  been   evicted  from  lands 

•  1  r.v.v   711.  »  1   Kcrn.ui.  <;i.  lo  3  r.-iipc,  210. 

h  V  •  l;{.j„(,ti.  '.»7.  11  Wiirh.  &(K). 

M    '.".,.-.  111. '1.  I.l.  tll7,yll,    Uli  I'd.  >M(;..w.711. 

0  W.-I..I    J.'.J.  1  i,  WiTi.l.  r,.12.  H  Wc'ikI.  '.». 

1<>  "7.  •(;  John.  (Ml.  111.  '9  3  U.  8.  7*i5t,  2<1  cd. 

»  :j  !■  4  Cr.iiu-li, -103. 

1.  '•.  2  P.iip-,  T)!. 

G  111..,.*-...  1J..I.II. (;ii.r.o2. 

<  f>  IliM    JT.'  »  Ih  John.  305. 

1  .  .  .,    .,_      8  WcdJ.  077. 


OF  Till':  iii-:i)i:mpti().\  of  lands  sold.  2IG 

imn-liascd  Ijy  liiin,  hy  reason  of  the  jud/rment  upon  wliich  sucli  execu- 
tion issued,  boini^  irvoked  or  reversed,'  in  addition  Vj  llie  provision 
already  cxistin*^  for  tlio  relief  of  one  so  evicted  by  reason  of  any 
irrei^ularily  in  the  proceeding  concerning  the  sale.'  And  it  is  provided- 
by  the  Cude  that  where  a  judgment  has  been  taken  against  an  absent 
defendant,  who  is  subsequently  allowed  to  defend,  and  where  the  defence 
is  successful,  and  the  judgment  or  any  part  has  been  collected,  or  oth- 
erwise enforced,  such  restilutioii  may  thereuj»on  be  compelled  as  the 
court  directs  ;  but  the  title  to  projterty  sold  under  such  judgment  to  a 
purchaser  in  good  failh,  shall  not  be  thereby  afl'ected.-'  And  so,  irreg- 
ularities in  the  judguient,  or  the  execution,  where  they  do  not  render 
them  absolutely  void  ;*  or  in  the  sale  by  the  officer,  as  where  the  sheriff 
omits  to  post  notices  of  the  sale,  or  they  are  torn  down  ;'  or  where  the 
sheriir  sells  lands  before  searching  for  and  selling  the  goods  and  chat- 
tels of  the  defendant,  will  not  render  a  sale  to  a  bona  fide  purchaser 
invalid,  if  the  hinds  are  liable  to  be  sold  uj)un  such  execution. 

CHAPTER  XXIX. 

OF  THE  REltEMPTION  OF  L.VXDS  SOLD. 

i5  -109.  The  rights  of  debtors  and  creditors  under  the  laws  of  this 
state,  concerning  the  redemption  of  lands  sold  on  execution,  and  the 
mode  of  proceeding  in  such  cases,  are  pointed  out  in  this  chapter. 
And  although  a  failure  to  comply  with  the  requirements  of  the  statute 
may  jirejudice  the  rights  of  one  seeking  to  redeem,  it  will  be  immaterial 
to  the  sheriff.  His  duties  in  the  case  of  redemption  are  simple  and 
easily  discharged.  He  is  to  receive  any  papers  which  may  be  left 
with  him  by  any  person  seeking  to  redeem,  and  retain  them  for  the 
inspection  and  benefit  of  those  interested  ;  and  receive  and  pay  over 
to  the  person  entitled  thereto,  any  moneys  which  may  be  paid  to  him 
on  any  redemption  ;  and  when  any  such  redemption  has  been  made, 
he  is  to  give  to  the  party  redeeming,  a  projier  certificate  thereof,  and 
in  certain  cases  he  is  also  to  make  and  file  a  similar  certificate  in 
the  office  of  the  county  clerk  ;  and  when  the  time  for  redeeming 
has  expired,  to  execute  a  deed  to  the  person  entitled  thereto,  of  the 
premises  sold.  But  the  sheriff  should  not  assume  to  decide  whether 
any  party  seeking  to  redeem,  is  or  is  not  entitled  to  do  so  ;  nor  whether 
he  has  or  has  not  complied  with  the  provisions  of  the  statute.  These 
are  questions  with  which  he  has  little  to  do,  and  in  all  such  cases  he 

«  2  R.  S.  375,  <fjS,  sub.  2.       *  1  Cow.  711.     8  Wend.  0.       s  o  R.  S.  309,  ^40. 

Id.  G24.  (j90,  sub.  2.  13  John.  102.  Id.  618,  <A'J,  4th  ed. 

a  Id.  sub.  1.  4  Weud.  462. 

»  CcKle,  <)Uo.  1  Cow.  622. 


216  OF  THE  RKDE.MPTION  OF  LANDS  SOLD. 

ahoulii  leave  the  rights  of  parties,  and  all  questions  touchincr  the  regu- 
larity of  the  proceedings  to  be  settled  by  those  in  interest. 

^  500.  W-  e 

been  made,  '  .  '" 

that  may  have  been  separately  sold,  may  be  redeemed. 

1.  "  '  '  '  '  :i  was  issuC-i,  ai:d  whose 
righ                                        .  or, 

2.  If  any  such  person  be  dead,  by  his  devisee  of  the  premises  sold,  if 
the  '  '  ':  and  if  the  same  shall  not  have  been 
de^                                              ,        -n :  or, 

3.  By  any  prantee  of  such  person  who  shall  have  acquired  an  abso- 

'      *      1,  sale  u?  '  '0,  or  under  an  e  <^>r  by 

S  to  the  ;  i,  or  to  any  lot,  :.         ,      <:el  or 

portion  which  shall  have  been  separately  sold.'  The  trustees  of  an 
absconding  debtor  are  entitled  to  redeem  as  grantees  of  such  debtor.* 
One,  however,  entitled  to  a  sheriff's  deed,  but  which  he  has  not 
obtained,  is  not  entitled  to  redeem  as  a  grantee,  even  though  he  was 
d   from  obtaining  such  deed  by  injunction  at  the  suit  of  the 

j_  - .1  debtor.'     A  mortgagee   or  his  assignee,  however,  is  not 

considered  a  grantee,  within  the  statute.     He  can  only  redeem  as  a 
creditor  oft!  :nl  debtor.*     One  having  an  equitable  title  to  the 

land  must  rL...  ....  ...liiin  the  same  time  and  in  the  same  manner  as  if 

he  had  the  legal  title,  and  not  as  a  judfrment  creditor.' 

5501.  Any  heir  or  devisee  of  the  p  ;i  the  execution 

was  issued,  and  any  grantee  of  such  j  ^.^  ..  ....^    have  acquired 

an  absolute  title  to  a  portion  of  the  estate  sold,  or  to  a  portion  of  any 
lot,  tract  or  parcel  that  shall  have  been  separately  sold  may  redeem 
the  lot,  tract  or  parcel  so  sold,  on  the  same  terms,  and  in  the  same 
manner  as  if  he  were  grantee  of  the  whole  lot,  tract  or  parcel,  and 
shall  have  the  same  remedy  to  enforce  contribution  from  those  who 
slrall  own  the  residue  of  such  tract,  lot  or  parcel,  as  if  the  sum  required 
to  be  paid  by  him  to  effect  such  redemption,  had  been  collected  by  a 
sale  of  the   portion  belonging  to  such  grantee.* 

5  502.  If  there  be  several  persons  having  undivided  shares,  as  joint 
tenaiit.-,  or  as  te:;anl3  in  conjmon,  in  the  premises  sold,  or  in  any 
particular  lot  or  tract  sold,  each  person  having  such  title  may  redeem 
the  sh;irc  or   •  •   ■■    •  '    '  -  •     -  •     '  -7 

2  503.  Si.  nent  debtor,  his  heirs, or  devisees 

or  grantees,  must  be  made  within  one  year  from  the   time  when  such 

'2B.  8     :  ♦!  '2R.  8.  371,448. 

"   '    ■  -iied-  Id.  619,  ^7, 4lh  ed. 

»  :  -.  ». 

•  .  : ,  v47. 

id.  i,i4,  yd6,  ith  ed. 


OF  Tin:  iii:di:mpti(jn  of  lands  sold.  217 

sale  shall  have  been  iniule,  and  not  after."  Such  redemption  is  made 
by  the  payment  to  the  j)urchaser  at  the  sherill's  sale,  his  personal 
representatives  or  assignees,  or  to  the  ofTicer  who  made  such  sale,  for 
the  nse  of  such  jiurchaser,  of  the  sum  of  money  which  was  bid  on  the 
sale  of  the  lot  or  tract  souf^ht  to  be  redeemed,  together  with  interest 
on  that  sum  from  the  time  of  sale  to  the  time  of  payment,  at  the  rale  of 
ten  per  cent,  a  year.'  If  an  undivided  share  or  interest  is  soui^ht  to  be 
redeemed,  then  the  party  must  pay  as  aforesaid,  a  sum  that  will  bear  the 
same  proportion  to  the  whole  purchase  money  bid  for  such  premises,  or 
for  such  particular  lot  or  tract,  as  the  share  proposed  to  be  redeemed, 
bears  to  the  whole  number  of  shares  in  such  premises  or  lot  or  tract, 
together  with  interest  as  aforesaid.^  The  statute  does  not  require  that 
any  evidence  should  be  furnished  to  the  sheriff,  by  the  ])arty  seeking 
to  redeem,  of  his  right  to  do  so ;  but  it  declares  that  upon  the  payment 
aforesaid  being  made  by  any  person  so  entitled  to  redeem  any  real 
estate  so  sold,  the  sale  of  the  jiremises  so  redeemed,  and  the  certificates 
of  such  sale  shall  be  null  and  void.*  On  making  such  redemption, 
neither  the  judgment  debtor  nor  any  heir,  devisee  or  grantee  so  redeem- 
ing, will  be  eniitled  to  a  deed  from  the  sheriO'.  The  effect  of  a  redemp- 
tion by  every  such  person  is  merely  to  render  the  sale  void,  and  the 
same  lands  may,  upon  any  redemption  being  so  made,  be  resold  upon 
the  same  judgment,  and  even  upon  the  same  execution,  if  the  same  has 
not  been  returned,  and  there  remains  anything  due  thereon.^ 

;3  501.  Where  the  redemption  is  sought  to  be  made  by  any  partv 
entitled  thereto,  of  the  officer,  the  same  rules  prevail  as  to  whom  the 
money  shall  be  paid,  and  the  character  of  the  money  that  may  be 
received,  as  on  redemptions  by  creditors.® 

5  505.  In  case  the  persons  entitled  to  redeem  as  hereinbefore 
mentioned,  shall  omit  to  redeem  the  premises  so  sold,  or  any  part  of 
thereof,  within  the  year  from  the  sale,  then  the  interest  vested  in  the 
purchaser  by  such  sale  may  be  acquired  within  three  months  after  the 
expiration  of  such  year  by  any  creditor  having  in  his  own  name,  or  as 
assignee,  representative,  trustee  or  otherwise,  a  decree  in  chancery,  or 
a  judgment  at  law,  rendered  at  any  time  before  the  expiration  of  fifteen 
months  from  the  time  of  sucli  sale ;  or  one  having  a  mortgage  duly 
recorded  within  that  period,  and  which  shall  be  a  lien  and  charge  upon 
the  premises  sold,  or  upon  any  parcel  which  shall  have  been  separately 
sold,  whether  such  judgment,  decree  or  mortgage  be  against  the  defend- 
ant in  the  execution,  or  any  other  person,  in  the  manner  hereinafter 
mentioned,  subject  to  be  defeated  by  any  other  like  creditor  in   the 

«  Ante.  (;500.  3  2  R.  S.  371,  ()iS.  s  15  Wcml  248 

5  2  R.  S.  370,  ^15.  Id.  G19,  (>57,  -Jth  cd.  7  Hill.  150.     5  Hill.  228. 

Id.  618,  $54,  4th  ed.  <  2  R.  S.  371,  (^49.  3  Barb.  70. 

Id.  619,  <)0S,  4th  ed.  «  Post,  ^516. 
29 


^18  OK  Tin:  UKIM'MTION  OF  LANI»S  SOLD. 

mnnnor  hercinnflcr  jiointcd  out.'  If  one  liol^s  a  juilgmcnl  or  deciec 
bv  nn  absolute  assignment,  it  will  be  sunieicnl  to  enable  him  to  redeem 
tliereunder,  thouiih  he  {.aid  but  little  lor  it.'  And  an  ai^simnnient  of  a 
jndgnient  by  nn  lulniini.slnilor,  will  b(>  :is  cfle'-tiin!  ns  if  mndo  by  the 
judgment  creditor  himself,  if  living.* 

i^  500.  If  purh  judgment,  decree  or  iiKTiuiiLf.  m-  ;i  mn  ><u  any  i«>i, 
tract  or  parcel  that  shall  have  been  separately  sold,  the  creditor  having 
the  same  may  acquire  all  the  rights  of  the  original  purchaser,  to  such 
lot.  trad  or  parcel,  subject  to  be  defeated  as  hereinalter  mentioned. 
And  so  if  the  lien  is  upon  a  specific  i)ortion  only  of  iiny  lot,  traei  or 
parcel  so  sold,  the  creditor  having  the  same  may  acquire  the  title  of 
the  purchaser  to  tlie  whole  of  such  lot,  tract  or  parcel,  in  the  same 
manner  as  if  such  lien  extended  to  the  whole.  And  if  the  lien  be  upon 
apy  undivided  share  or  interest  in  any  real  estate  sold,  the  creditor 
may  likewise  acquire  the  title  of  the  original  purchaser  to  .such 
share  or  interest.*  But  a  creditor  cannot  redeem  by  virtue  of  a  lien 
upon  a  portion  of  the  lands  not  sufficiently  described  in  the  sheriir's 
advertisement  and  certificate.®  Where  a  sale  is  under  several  judg- 
menls,  the  purchaser  takes  title  under  each,  and  a  judgment  creditor, 
in  order  to  redeem,  must  be  entitled  to  do  so  in  respect  to  all  of  them.* 

^  507.  Whenever  any  such  creditor  shall  have  acquired  the  title  of 
the  original  j)urchaser,  pursuant  to  the  foregoing  provisions,  any  other 
creditor,  who  might  have  acquired  such  title  according  to  the  said 
provisions,  may  become  the  ]>urcha.ser  thereof  from  the  first  creditor 
w  ho  accjuired  the  same  ;  and  in  the  same  manner,  any  tliirti  or  other 
creditor,  who  might,  according  to  the  foregoing  provisions  accjuire  the 
title  of  the  original  purchaser,  may  become  the  purchaser  from  any 
other  creditor,  upon  the  same  terms  and  conditions  as  the  second 
creditor  from  the  first. ^  And  a  creditor,  though  he  has  once  redeemed 
under  his  judgment  and  taken  title,  may  redeem  again  by  virtue  of  the 
same  judgment,  for  a  redem.ption  is  not  a  satisfaction,  especially  from 
a  sale  on  a  judgment  senior  to  his  own  and  the  one  from  w  hich  he  first 
redeemed." 

3  50fi.  If  the  original  purchaser  of  any  iircmises  .so  sold,  shall  also 
be  a  creditor  of  the  defendant  against  whom  the  execution  issued,  and 
as  such  might  ac(iuire  the  title  of  any  purchaser  according  to  the  pre- 
ceding provisions,  he  may  avail  himself  of  his  decree,  judgment  or 
mortgage,  in  the  same  manner  and  on  the  same  terms  as  other  creditors, 

I  2  n.  H  r^Tl ,  <'/.1  «  2  Dciilo,  272.  7  2  R.  S.  372,  f/>C5,  GO. 

M  01       •  \  -'  2  Com.  480.  Id.  020,  (;01-05. 

1,1V.'  ;  .  <  2  K.  8.  :{71,  (\<)IJ2-bi.  «  7  Ctnv.  610. 

1  •  ii     no.  M   Ol'.t,  \;,«yil-tjij,  .llhcd.  b  Paige,  2»5. 

<iO  Hill,  IVJ. 

.1  1..  Ml',  --'),  nolo  ."»  •  I  Driiiii,  137. 
1  C'vw.  413.  2  Com.  484. 


OF  TIIR  REDI^MPTION  ni^  LAMiS  SOLD. 


219 


to  ar(|iiire  the  title  whidi  any  (Creditor  may  have  obtained  by  a  redemj)- 
tion  from  him.' 

^  500.  'I'he  ])Iaiiitiir  under  whose  execution  any  real  estate  shall 
have  been  sold,  shall  not  be  aulhori/cd  to  acquire  the  title  of  the  origiiial 
purchaser,  or  of  any  creditcn'  to  the  premises  so  sold  by  virtue  of  ilio 
decree  or  judgment  on  which  such  execution  issued ;  and  if  he  have 
any  other  decree,  judgment  or  mortgage  which  would  entitle  him  to 
acquire  such  title,  according  to  the  preceding  provisions  he  may  avail 
himself  of  such  other  decree,  judgment  or  mortgage,  in  the  same  manner 
and  on' the  same  terms  as  any  other  creditor.' 

;5  510.  One  who  has  fold  the  premises  upon  his  judgment,  whether 
he  purchased  them  in  on  the  sale  himscltor  not,  or  whether  they  were 
Hold  for  the  amount  of  the  judgment  or  not;  or  whether  any  part  of 
the  i)roceeds  were  applied  to  his  judgment,  or  the  whole  was  absorbed 
by  i>rior  liens,  caimot  redeem  the  [)rcmises  from  such  sale  by  virtue  of 
the  same  judgment,  either  from  the  original  purchaser  thereof  or  from 
a  creditor  who  has  redeemed.  The  sale  of  the  premises  under  such 
judgment  extinguishes  the  lien  thereof  upon  such  land.^  And  if  the 
judgment  creditor  who  sells  the  premises  purchases  them  at  a  price 
ex«'eeding  his  judgment,  he  cannot  refleem  them  by  virtue  of  such 
judgment  from  a  sale  under  an  older  judgment,  for  by  such  sale  his 
judgment  became  cancelled.^  A  sheriff's  sale  and  a  deed  in  pursuance 
thereof,  cuts  off  the  lien  of  all  junior  judgments  and  mortgages,  and  the 
holders  of  sucji  judgments  or  mortgages  cannot  redeem  upon  a  subse- 
quent sale  under  a  judgment  senior  to  the  one  on  which  the  first  sale 
was  had.^  And  a  mortgage  is  merged  by  the  foreclosure,  and  the 
mortgagee  cannot  redeem  from  a  sale  upon  a  judgment.  Nor  is  a 
decree  for  the  deficiency,  though  docketed,  a  lien  upon  the  mortgaged 
premises.'  Aft'er  an  available  levy  upon  sufficient  personal  property 
belonging  to  the  defendant  in  the  execution  to  satisfy  it,  the  judgment 
ceases  to  be  a  lien  upon  the  debtor's  real  estate,  and  is  no  foundation 
for  a  redemption  of  the  debtor's  land  sold  upon  other  executions.'  But 
if  the  levy  is  insuflicient  to  satisfy  the  judgment,  the  fact  that  the 
execution  has  become  dormant  in  the  hands  of  the  sheriff  will  not 
affect  the  lien  of  the  judgment  upon  the  land,  nor  prevent  the  creditor 
redeeming  the  land  when  sold  under  a  prior  judgment."  So  where 
there  is  an  execution  against  the  body,  and  the  defendant  is  taken,  it  is 


•  -2  R.  S.  372,  v'u.T. 

1(1.  620,  \;0C>,  4th  cJ. 
»  2  R.  S.  372,  voS. 

Id.  G20,  <^G7,4th  eil. 

4  Denio,  137. 

2  Com.  481. 


3  4  Hill,  514. 
20  Woiul.  G02. 
4  Dviiio,  137. 
2  Com.  484. 

4  Co>%-.  133. 

<  2  Wend.  297. 

5  Hill,  229. 


5  1  Denio,  033. 

10  Paige,  249. 

4  Cow.  133     2  Wend.  207. 

6  1  Barb.  379. 
■  4  Cow.  417. 

G  Wend.  562. 
8  7  Barb.  341 . 


220  OF  TllH  lU:i)i:.Ml'TION  OF  LANDS  SOLD. 

a  salisfiiclion  of  the  jiulgmcnt  wliilo  he  is  so  uudcnincst.  and  iho  judg- 
ment censes,  fur  the  time,  to  be  n  Hen  upon  ihe  dffemUinls  property.' 

^  f)!!.  A  cre«litor  under  a  senior  jnd^nunt  may  redeem  from  a  sale 
on  a  junior  jud^Muenl ;'  and  he  may  do  so  \\hclher  he  hold  the  judg- 
ment on  which  the  sale  was  made  or  nol.^  The  judgment  under  which 
a  re«lcmption  is  soui;hl  to  he  made,  may  be  obtained  after  the  sale,  if 
before  the  expiration  of  the  debtor's  fifteen  months/  It  is  sullicienl 
that  the  judi;mcnt  is  a  lien  upon  the  premises  at  the  time  the  party 
seeks  to  redeem.  It  need  not  be  so  at  the  time  of  the  sale.  And  it 
may  be  confessed  for  the  express  purpose  of  allowing  one  to  redeem.* 
And  it  will  not  make  any  diflerence  that  there  is  a  stipulation  not  to 
issue  an  execution  under  a  year.*  The  sullerin^  an  execution  to  become 
dormant  in  the  hands  of  the  shcrilV,  does  not  aflect  the  validity  of  the 
lien  of  the  juilgment,  if  the  levy  is  not  sulHcient  to  satisfy  the  execu- 
tion.^ A  judirment  more  than  ten  years  old,  remains  a  lien  as  against 
the  defendant  in  the  execution,  and  the  owner  of  it  may  redeem  as  a 
junior  judgment  creditor,  from  a  sale  against  such  defendant  under  a 
judgment  less  than  ten  years  old.  If  there  be  two  such  judgments, 
thev  take  priority  from  the  time  of  the  docketing  thereof  respectively.' 
One  holding  a  judgment  rendered  by  a  justice  of  the  peace,  and  duly 
docketed  with  the  county  clerk,  for  twenty-five  dollars  or  over,  exclusive 
of  costs,'  may  redeem  under  it  in  the  same  manner  as  if  the  judgment 
was  rendered  in  a  court  of  record,  and  it  will  not  make  any  dill'erence 
that  sudi  judgment  was  rendered  in  proceedings  commenced  by  attach- 
ment." And  though  one  redeems  and  has  taken  title,  it  is  not  a  satis- 
faction, and  he  may  redeem  again  in  virtue  of  the  same  judgment, 
even  where  the  premises  to  which  he  accpiires  title  arc  wtulh  more 
than  the  amount  paid  by  him  to  redeem." 

^  512.  In  order  to  redeem  from  the  purchaser,  the  creditor  who  may 
be  entitled  to  do  so,  shall  pay  the  sum  of  money  which  was  paid  by 
such  purcha.ser  on  the  sale  of  sucli  premises,  or  upon  the  parcel  sought 
to  be  redeemed,  which  shall  have  been  separately  sold  ;  and  if  an 
undivided  share  or  interest  is  sought  to  be  redeemed,  then  he  shall  pay 
such  i»art  of  the  whole  purchase  money  as  shall  be  in  a  just  proportion 
to  the  amount  of  svich  share  or  interest,  together  with  interest  on  any 
such  sum  at  the  rate  of  seven  per  cent,  a  year  from  the  time  ol  such 
gale."  And  the  whole  bid  for  the  jiart  souj^lu  to  be  redeemed,  or  in 
such  last  case,  the  just  j»roi)orlion  of  such  bid,  must  be  iniid  without 
reference  to  the  priority  of  liens.     And  if  the  judgment  under  which 

I  1  Cow.  60.  •  1  C(.w.  413.  '0  7  Cow.  17. 

13  John.  633.  ■>  7  ll.irl.  ".H  n  H  Tnigc,  286. 

1  7  Cow.  640.  »  7  (.'ov,        n                                 7  Cow.  640. 

»  2  Com.  484.  3  U.nil.      l  »a  2  U.  B.  371,  ^<;61,  64. 

«  1  Cow.  443,  601.  •  1  Code,  <,tili.                               Id.  ClU,  %(jO,  03,  4lh  cd. 
6  2  Cow.  618. 


or  Till':  IIDDICMI'TION  OF  LANDS  SOLD.  221 

the  crcililor  seeks  to  reclcciu  is  inlciiiiecliate,  two  jiidgrneuls  on  which 
the  kuuls  were  sold,  ai)il  it  was  suKl  for  enough  to  pay  holh  such  judg- 
ments, the  creditor  holding  the  inlerine(hate  judgment  cannot  redeem 
by  paying  the  ju(h_^mcnt  i)rior  to  his  own.  lie  must  jiay  tlic  whole  bid 
and  interest.  Where  one  holds  an  intermediate  judgment,  he  .should 
not  allow  the  premises  to  be  sold  on  an  older  and  junior  one  at  the  same 
time,  without  having  the  lands  advertised  on  his  own  judgment  also, 
else  his  judgment  will  become  subjecrt  to  the  lien  of  such  junior  execu- 
tion.' If  the  purchaser,  or  the  assignee  of  such  purchaser  has  also  a 
lien  upon  the  premises  by  judgment  or  mortgage,  and  he  shall  furnish 
the  sheriir  with  the  proper  evidence  of  such  lien,  a  junior  creditor 
coming  in  to  redeem  from  the  purchnser,  must  also  pay  such  senior  lien 
as  well  as  the  bid  and  interest. '-^  Where  an  assignee  of  the  shcrifPs 
certificate  holds  such  prior  liens,  it  is  not  necessary  in  order  to  entitle 
him  to  the  payment  of  them,  by  any  creditor  seeking  to  redeem,  that 
he  should  formally  redeem  ;  it  is  sufTicient  that  he  has  the  sheriff's 
certificate,  and  has  furnished  to  the  oflicer  the  proper  evidence  of  such 
liens.^  And  where  such  assignee  juesents  the  sherift*'s  certificate  and 
assignment  to  him,  in  order  to  entitle  him  to  the  payment  of  such  liens, 
without  jiaying  to  the  sherifl'  the  amount  bid,  it  is  not  necessary  that 
such  assignment  should  have  been  first  filed  with  the  county  clerk. ■• 

g  513.  There  is  no  provision  for  concurrent  redemptions,  where 
judgments  are  of  the  same  date;  but  the  creditor  holding  any  such' 
judgment  who  first  redeems  will  be  entitled  to  a  deed,  unless  the  otlier 
creditor  redeems  from  him;  in  which  case  he  must  pay  the  amount  paid 
by  the  former  creditor,  with  interest,  and  not  merely  the  amount  of 
the  bid.^  Where  two  creditors  seek  to  redeem  and  neither  ofiers  to 
pay  the  lien  of  the  other,  the  cj-editor  having  the  oklcst  lien  will  be 
entitled  to  a  deed.^ 

§  511.  Whenever  any  such  creditor  shall  have  acquired  the  title  of 
the  original  purchaser,  any  other  creditor  who  might  have  acquired 
such  title,  who  seeks  to  redeem  from  such  first  creditor,  must, 

1.  Reimburse  to  such  first  creditor  his  personal  representatives  or 
assignees,  the  sum  which  may  have  been  paid  by  him  to  acquire  such 
title,  together  with  interest  thereon  at  the  rate  of  seven  ]ier  cent,  a  year, 
from  the  time  of  such  payment,  to  the  time  of  such  reimbursement. 
If  the  person  seeking  to  redeem  from  the  first  creditor,  is  also  the 
assignee  of  the  sherilV's  certificate,  he  is  not  bound  to  pay  the  purchase 
price  on  the  sale.     And  if  such  assignee  is  also  a  senior  creditor,  he 

•  7  Hill,  150.  3  1  Dcnio,  239.  6  4  Denio  137 

2  2  R.  S.  372,  V)55.  <  1  I»enio,  239.  2  Coin  '-184  ' 

Id.  (520,  ^64,  ith  ed.  s  1  uiU,  040. 

2  Hill,  51. 

1  Doiiio,  239. 

4      "       145. 


222    OK  TUB  iii:i)i:mption  of  lands  sold. 

will  be  cnlitlcd  to  ailt'cil  wiiliiuit  i'a\  In-' .•uiviliin".  t-vcn  tlioiiL'Iia  iiiiiior 
creditor  has  redeemel 

2.  If  the  juili^inoiU  «>;•  lU-fico  l»y  \iil!J.'<.r  ulwli  tlio  i\v>\.  cieditor 
acquired  the  title  of  the  original  purchaser,  be  prior  to  the  judgment » 
or  decree  of  such  second  creditor,  then  such  second  creditor  shall  also 
pay  ti>  such  first  «MC(litor.  the  amount  due  on  his  judgment  or  decree.' 
But  if  such  firal  creditor  is  iho  assignee  merely  of  the  lien,  by  virtue 
of  which  he  redeemed,  he  must  furnish  the  ollicer  making  the  sale,  or 
the  second  crc<litor  with  the  evidences  of  his  title  to  such  judgment. 
Merely  claiming  it,  and  givincr  a  memorandum  of  the  amount,  is  not  suiH- 
cient.*  If  the  lien  of  the  second  creditor  seeking  to  redeem,  is  prior 
to  the  lien  of  the  crcdit<ir  from  whom  he  seeks  to  redeem,  he  is  not 
bound  to  pay  such  subsequent  lien,  but  only  the  amount  paid  by  such 
first  creditor  on  redeen»ing,  and  interest:* 

3.  But  if  such  judgment  or  decree  of  the  first  creditor,  at  the  time 
of  his  acquiring  the  title  of  the  original  purchaser,  shall  have  ceased 
to  be  a  Hen  as  against  such  second  creditor,  it  shall  not  be  necessary 
to  pay  the  amount  thereof.^ 

^  515,  The  sums  required  to  be  paid  by  the  foregoing  provisions  to 
acquire  the  title  of  the  original  purchaser,  or  to  become  a  purchaser 
from  any  creditor,  may  be  paid  to  such  purchaser,  or  if  the  premises 
have  been  redeemed,  then  to  the  creditor  who  last  redeemed,  or  to 
the  rejtresentatives  or  assigns  respectively  of  such  purchaser  or 
creditor,  or  to  the  ofiicer  who  made  the  sale  for  the  use  of  the 
purciiaser  or  creditor  entitled  to  the  same.*  But  if  the  redemption 
is  made  on  or  after  the  last  day  of  the  fifteen  months  as  herein- 
after mentioned,  the  payment  must  be  made  to  the  officer  who 
made  the  sale,  at  the  sheriff's  office,  and  if  he  is  absent  therefrom,  then 
to  the  sheriff,  or  iti  his  absence,  to  the  under-sheritr  or  any  deputy  in 
the  office/  It  will  not  invalidate  a  payment  when  properly  made,  if 
the  redeeming  creditor  immediately  thereafter  serves  an  injunction  in 
his  own  ftivor  restraining  the  sheriff  from  j)ayii)g  over  the  money.' 
But  where  a  creditor  had  redeemed  upon  a  prior  judgment  ho  was  not 
'I  the  payment,  although  he  had  a  judgment  oldiy*  than 
1  the  sale  look  place,  and  the  premises  were  not  worth 
more  than  the  bid  by  the  ])iirchaser.* 

3  510.  Where  thu  re  lemplion  is  sought  to  be  made  of  th  >  officer, 
the  money  n)usl  be  paid  to  iho  sherilV  who  made  the  sale,  whether  his 
term  of  office  has  expired  or  not,  and  not  to  his  successor  in  office  ;  or 


•  4  Hill.  G0«. 

»  7  Cow.  610. 

0  2  U.  8.  :i72,  <^M, 

2    "      61. 

.»  ii.  ,,;..    1  I.-,. 

I.l.  r,21.<vOH, -IthcJ. 

1  Donto,  i89. 

<  1  ■ 

1  Cow     f'«. 

5  :  1                  M 

0 1  Hill,  r.H'.t. 

a  211 

•  '2 

II.  ^/-u,  M,  Jill  <-l. 

»  C  Hill.  3(32. 

Id. 

lllio 

I 

OF  'nil':  ui:di:mi'tion  oi"  lands  som).  223 

it  may  bo  ni;i(le  to  the  deputy  of  such  sheiill'  ^vho  coiulin-tcd  the  sale, 
unless  lie  Jias  ceased  to  be  a  (h'puly  <•!"  such  sherifl'.'  And  it  has  been 
held  tli.'il  a  deputy  who  sells  lands  on  execution,  has  the  right  to 
authoii/.c  a  deposit  of  the  redeiuption  money  with  another  as  his 
ayent,  and  such  deposit,  within  the  time  allowed  by  law  lor  redeeming 
will  be  a  valid  payment  to  llu;  dcjiuty,  and  constitute  a  good  redemp- 
tion.* If  any  sherill"  shall  die  or  be  removed  from  oflice,  after  liaving 
made  sale  of  any  real  estate,  the  moneys  required  to  be  paid  to  him 
for  the  rcdcmpti(jn  of  such  estate,  or  for  the  purjKjse  of  acquiring  the 
title  of  the  orii,njial  jmrchaser,  may  be  paid  to  his  under-sherilT,  or  lo 
llie  clerk  of  the  county,  in  the  same  manner,  and  will)  the  like  elFcct, 
as  if  paid  lo  such  sherin>"  The  payment  must  be  in  money  or  equiv- 
alent, and  a  bank  check  is  not  such,  unless  the  money  be  had  thereon 
before  the  expiration  of  the  lime  for  redeeming.'*  But  the  jiurchaser 
or  person  in  interest  may  authorize  the  taking  anything  in  payment 
beside  money."'  And  current  bank  bills  may  be  received  by  the  oflicer 
though  against  llie  express  direction  of  the  purchaser.'  Foreign  coin 
received  without  objection  at  its  current  value,  but  which  was  in  fact 
worth  a  few  cents  less,  lias  been  held  a  valid  payment,  and  this  loo, 
iliough  such  coin  was  not  a  legal  tender.'' 

^  517.  The  sherifl"  is  not  bound  to  make  the  computation,  but  if  he 
does,  and  miscalculates  it  so  as  to  mislead  the  party  as  to  the  amount 
to  be  paid,  the  redemption  will  be  good.^  But  it  will  be  otherwise 
where  the  error  is  made  by  the  party  himself;  for  if  an  error  is  com- 
mitted by  him  in  this  respect,  and  he  does  not  pay  all  the  prior  liens 
and  incumbrances  that  he  is  bound  to  pay,  the  redemption  will  be  void 
and  the  payment  of  the  deficiency  at  the  expiration  of  the  fifteen 
months  will  not  avail  him.  And  the  opposite  party  is  not  bound  to  give 
him  any  information  as  to  the  amount  to  be  paid.  All  that  is  required 
of  him  is,  that  if  he  speaks,  he  does  nothing  to  deceive  or  mislead.' 

^  518.  To'"  entitle  any  creditor  by  judgment  or  decree,  to  acquire  the 
title  of  the  original  purchaser,  or  to  become  a  purchaser  from  any  other 
creditor  as  aforesaid,  he  shall,  in  addition  to  reimbursing  to  such  pur- 
chaser or  creditor  the  amount  paid  as  aforesaid,  present  to  and  leave 
with  such  putchaser  or  creditor,  or  the  oflicer  who  made  the  sijle,  the 
following  evidence  of  his  right: 

1.  A  copy  of  the  docket  of  the  judgment  or  decree  under  which  he 
claims  the  right  to  purchase,  duly  certified  by  the  clerk  of  the  court  or 
of  the  county  in  which  the  same  is  docketed  ;  or  an  exemplification  of 

»  Ante,  0»17.  *  20  Wend.  002.  9  ]  Cow.  482. 

20  Wend.  602.  s  5  Hill,  117.  1  Denio,  272. 

a  1  Barb.  Cli.  53.  6  4  Cow.  420.  lo  2  R  S  .372  ^60. 

s  2  E.  S.  374,  vUi7.  t  4  Hill,  613.  Id.  021,  ^61*,  4th  ed. 

Id.  623j<iS 3,4th  cd.  «  1  Barb.  Ch  53.  3  Barb.  301. 


•^^l  OF  Till-:  IlKDHMrriON  OF  LANDS  SOLD. 

the  jiulgmenl  record.'  The  cojiy  of  such  docket  need  not  be  under 
the  seal  of  the  court;  nor  need  the  clerk  certify  that  lie  has  compared 
it  with  i'  nal,  and  that  it  is  a  correct  copy  and  the  whole  thereof. 

It  is   suii  lat   he   terms   it  n  cojty."     And   a   deputy  clerk   has 

authority  to  certify  the  copy  of  the  docket,  and  such  certificate  need 
not  show  the  ahsencc  of  the  clerk  on  its  face  ;  nor  slate  that  the  clerk 
had  compared  the  copy  with  the  original,  and  that  it  is  a  correct  trans- 
cript thereof,  and  of  the  whole  of  such  original.^ 

2.  The  original*  or  a  true  copy  of  .all  the  assignments  of  such  judgment 
or  decree,  which  are  necessary  to  establish  his  claim,  verified  by  his 
aflidavit,  or  by  the  affidavit  of  some  witness  to  such  assignments."  An 
assignment  giving  the  title  of  the  suit  and  transferring  the  judgment  to 
the  creditor,  but  without  jiarlicularly  descril)ing  the  judgment  as  to  the 
amount,  the  term  of  the  court,  or  the  court  in  which  it  was  recovered, 
has  been  held  sulhcient.'  And  it  has  also  been  held  that  the  omission  of 
the  middle  letter  of  the  plaintilV's  name  will  not  render  an  assignmertl 
void  ;  nor  will  the  omiss'on  of  the  attorney's  name  ;  nor  if  the  assignment 
slate  the  judgment  to  be  for  a  diflerent  sum ;  nor  that  it  was  rendered 
at  a  difierent  lime,  if  there  is  no  pretence  that  there  is  more  than  one 
judgment  between  the  parties.  It  has  also  been  held  that  such  assign- 
ment may  be  verified  by  setting  it  forth  and  by  prefacing  or  adding 
that  it  is  a  true  and  accurate  copy  of  the  original  assignment  between 
the  assignee  and  assignor.^  And  an  alfidavit  by  one  that  he  is  the 
assignee  and  owner  in  good  faith  of  the  judgment,  without  any  allega- 
tion of  the  execution  of  the  papers  has  also  been  held  sulficient.  IJul  an 
acknowlodgmenl  by  an  ollicer  authorized  to  take  the  acknowledgment 
of  deeds  is  not  a  sulficient  verification  for  the  purjjose  of  redeeming." 
If  the  assignment  is  not  verified  by  the  party  who  seeks  to  redeem, 
it  may  be  verified  by  a  subscribing  witness  thereto,  if  there  be  one.* 
But  if  there  is  no  such  subscribing  witness,  then  any  one  who  was 
j»rc.sent  and  saw  the  execution  of  the  assignment,  may  verify  the  same. 
He  will  be  a  witness  to  such  assignment  within  the  uicaning  of  the  act." 
The  afliduvitof  one  describing  himself  as  an  agent,  will  not  bo  sufli- 
cienl."  The  assignment  of  the  lien  may  be  made  by  an  executor  or 
administrator,  and  the  issuing  of  letters  of  administration  to  him,  may 
be  shown  by  aflidavit  to  be  presented  with  the  papers,  without  pro- 
ducing such  letters  of  administration." 


1  1  Cow.  11.1. 

«  1  Dcnio,  Vn. 

10  t  DiMiio,  113. 

«  1  lH?iilo,  1 15 

2  Coin.  481. 

'2  Com.  -IK'J. 

2  Hill,  61. 

10  Haul.  173. 

It  1  I»oiiio,  (W2. 

« 4  Corr  F>r,r, 

•>  1't  ll.irlv  107. 

2  Com.  489. 

4  4  l< 

!>  ; 

««  4  Dfiiio,  137, 

8  1.. 

*                      1. 

2  Com.  488. 

1  l).M:!..^  .,.,.:, 

!••   I. .11.      Itl7. 

'1  Com.  m'J, 

oi'  TiiF-  ri:i)i:mption  of  lands  sold.  225 

.'J.  An  aflidavit  hy  siu^U  creditor,  or  by  liis  atlonicy  or  n^ent,  of  the 
true  sum  duo  on  su<;h  judgment  or  decree,  at  the  time  of  claiminj^  such 
right  to  purchase.  Where  the  aflidavit  is  made  by  ihe^agent,  it  should 
show  that  he  was  the  agent,  and  it  should  he  positive  as  to  the  amount 
due,  and  if  it  is  on  behcf  merely,  it  will  not  be  suHicient.'  But  it  is 
not  necessarv  that  the  amount  stated  should  at  all  events  be  the  true 
amount,  if  the  aflidavit  is  in  proper  form,  and  is  made  in  good  faith.  An 
aflidavit  made  five  days  before  it  is  presented  to  the  shcrill',  is  suflicient.* 

(5  51ft.  To*  entitle  a  creditor  by  mortgage,  his  assignee  or  represen- 
tative to  acquire  the  title  of  the  original  purchaser,  or  to  be  substituted 
as  a  purchaser  from  any  other  creditor,  in  addition  to  the  payment  as 
aforesaid,  he  shall  jjresent  to,  and  leave  with  such  purchaser  or  cred- 
itor, or  the  ofllcer  who  made  the  sale,  the  following  evidences  of  his 
right : 

1.  A  copy  of  the  mortgage  under  which  he  claims  the  right  to  pur- 
chase, dulv  certified  by  the  clerk  of  the  county  where  said  mortgage 
is  registered  or  recorded.  Such  certificate  will  be  good,  though  it 
neither  bears  date  nor  is  under  seal  :* 

2.  A  copy  of  the  assignment  or  assignments,  where  the  mortgage 
has  been  assigned,  verified  by  his  allMavit,  or  the  aflidavit  of  some 
witness  to  such  assignments  : 

3.  A  copy  of  the  letter  of  administration,  or  letters  testamentary, 
where  an  administrator  or  executor  applies  to  be  substituted  as  a  pur- 
chaser : 

4.  An  aflidavit  of  such  mortgage  creditor,  his  assignee  or  represent- 
ative, or  by  his  attorney,  or  agent,  stating  the  true  sum  due,  or  to 
become  due  on  such  mortgage  at  the  time  of  claiming  such  right  to 
purchase  over  and  above  all  payments.  An  aflidavit  was  held  good, 
though  made  within  a  year  from  the  day  of  sale,  and  consequently 
before  the  i>arty  had  a  right  to  redeem.^ 

.5  520.  Such  payments  and  evidences  of  right  to  redeem  must  be 
made  to,  and  left  with  the  same  perrson  or  ofllcer,  and  it  will  not  be 
sufficient  that  the  money  is  paid  to  the  party  entitled  thereto,  and  that 
the  evidences  of  title  are  left  with  the  ofllcer  who  made  the  sale.  The 
person  or  ofllcer  with  whom  such  papers  are  left,  should  retain- the 
same  for  the  inspection  and  benefit  of  all  parties  interested.* 

,§  521.  The  rights  of  parties  become  fixed  at  the  expiration  of  the 
time  for  redeeming,  and  if  the  creditor  seeking  to  redeem  has  not 
furnished  all  the  necessary  evidences  of  his  right,  or  has  not  paid  the 
full  amount  that  he  was  re(iuircd  to  pay  to  redeem,  through  misappre- 

1  7  Hill,  177.  3  2  R.  S.  621,  ^70,  4th  cd.        s  o  Hill,  51. 

4  Denio,  258.  Laws  1886,  ch.  526,  ^2.  10  Barb.  1C7. 

2  Com.  4".i0.  *  2  Hill,  51.  s  4  Denio,  lilt. 

2  4  Hill,  608. 

30 


226  OF  THi:  RKDF.MPriON  OF  LANDS  SOLD^ 

hension,  the  rcilcmption  will  be  void  :  llu'  furnishing  such  ita|>crs  or  ihc 
payment  of  any  <lefiriency  after  that  time  will  be  too  late.  And  it 
will  not  make  any  dilliMcn<'o  tlint  the  o|)|)()site  party  did  not  give  infor- 
mation of  the  true  sun>  rc<|uired.  They  ar©  not  oMi'^'ed  to  do  so.' 
The  party  seekinij  to  redeem,  must  strictly  comply  with  all  the  condi- 
tions, and  the  ollicer  from  whom  the  re<lcmption  is  madf.  has  no  right 
to  dispense  with  any  of  them.  Hut  the  production  of  the  necessary 
paj^ers  may  be  waived  bv  the  purchaser  or  creditor,  of  whom  the 
redemjition  is  made,  and  such  rcdem|»tion  will  be  valid  as  against  him, 
but  it  \\i\\  be  iiK  11  .fr:iti\  I'  :iiiil  in  i.i\  .liliii  "■  if  riiiv  other  eifdilor  seeks  to 
redeem. 

^  5'Jii.  Ti»c  right  of  a  judgiiKnt  cieditor  to  redeem  j)rcmiscs  sold  on 
a  prior  judgment  cannot  be  defeated  by  the  purchaser  jtaying,  or 
offering  to  jtay,  the  judgment  under  which  the  creditor  claims  to  redeem 
without  his  consent,  esj»eeially  where  such  payment  is  not  made  until 
after  the  redeeming  creditor  ha^  actually  j)aid  to  the  sherilV  the  amount 
of  the  purchaser's  bid,  and  commenced  delivering  the  ]>apers  to  entitle 
him  to  redeem.  And  a  stranger  has  no  right  to  j)ay  the  same  for  the 
purpose  of  extinguishing  the  lien,  and  preventing  the  holder  from 
redeeming.  But  if  the  creditor  accepts  the  money,  though  paid  by  a 
stranger,  his  right  to  redeem  is  gone.^ 

5  523.  Any  creditor  having  a  right  to  redeem,  may  redeem  within 
twenty-four  hours  after  any  preceding  redemption,  although  this  will 
carry  it  beyond  the  fifteen  months,  and  no  deed  upon  any  sale  or 
redemption  shall  be  executed  until  after  the  lap.se  of  twenty-four  hours 
after  the  last  redemi)tion.* 

5  521.  All  redemj)tions  made  on  or  after  the  last  day  of  the  fifteen 
months  by  any  creditor,  shall  i)e  made  at  the  sherill's  oHice  of  the 
county  in  which  the  sale  took  pla<:c,  and  it  shall  be  the  duty  of  the 
ofilcer  making  the  sale,  to  attend  at  said  olHce  during  the  last  day  for 
making  such  redemptions,  and  during  the  time  thereafter  in  which  such 
redemptions  may  be  made,  and  in  case  of  the  absence  of  the  ollicer  who 
made  the  sale,  from  the  sherill's  oilice,  at  such  time,  then  such  redemp- 
tion may  be  made  to  the  sherill";  and  in  his  absence  to  the  under-sheriir, 
or  any  deputy  present  at  such  oilice. ' 

<3  525.  When  any  redemj)tion  shall  be  made  prior  to  the  last  day  of 
the  fifteen  months,  the  ollicer  to  whfun  such  redemf)tion  shall  be  made, 
shall  immediately  thereafter  file  in  the  oilice  of  the  clerk  of  the  county 

'  1  f'  •  ■     ""  '  -  ..  <  ..w.  2IH.  <  2R.  S.  r.22,<yr,.  4th  i-d. 

**'■                     7  Jlill,  HI.           7    "     510.  Laws  1H17,  rh. -no,  ^;4. 

-  '                     "  ••••»l»r«\  1C7.       0    "     (511.  6  2  U.  H.  r,22,  <;7o,  .|tli  od. 

iJiiw. -l/il      G  WftiU.  620.       1  ll.iHi.  ;]7l».  Lawn  1817,  ch.  410,  ^. 

IHWend  6'.»8.     10    "     87.       LO  WtuJ.  218. 

20    "     &66. 


OF  Till':  Rl'DTCMPTION  OF  LA.NJi.S  HojJ).  227 

a  statement  of  such  redemption,  which  shall  contain  the  title  of  the 
cause,  or  it*  it  he  a  mortfja'^e,  the  parties  to  the  mortgage,  the  amount 
of  the  judgment,  decree  or  mortgage  ;  the  assignee,  representatives  or 
trustees  thereof,  if  any,  and  the  amount  paid  to  redeem,  the  tifne  when 
such  redemption  was  made,  and  the  sum  claimed  to  be  due  upon  such 
judgment,  decree  or  mortgage,  at  the  time  of  such  redcmfttion.' 

^  512(5.  Whenever  any  redemption  shall  have  been  made  of  any  real 
estate  sold,  it  sliall  be  the  duty  of  tlie  ofticer  making  such  sale,  or 
of  any  other  person  who  may  lawfully  act  in  his  behalf,  to  execute 
to  the  person  making  such  redemption,  his  certificate,  truly  stating 
all  such  facts  transpiring  before  him  at  the  making  of  such  redemp- 
tion, as  shall  be  sudicient  to  show  the  fact  of  such  redemption.  And 
such  certificate  may  be  proved  or  acknowledged  as  deeds  are 
required  to  be,  to  entitle  them  to  be  recorded,  and  being  duly  recorded 
in  the  clerk's  office  of  the  county  where  the  real  estate  so  sold  is 
situated,  shall  have  the  same  etl'ect  as  against  subsequent  purchasers 
and  incumbranccsas  deeds  and  conveyances  duly  proved  and  recorded  ; 
and  J^uf  h  certificate  (»r  the  record  thereof,  or  a  duly  authenticated  copy 
of  such  record,  shall  be  received  in  all  courts  and  places  as  prima  facie 
'"vidence  of  the  facts  therein  stated.' 

^  527.  A  purchaser  of  lands  sold  on  execution,  may  make  a  valid 
agreement  with  the  execution  debtor  after  the  sale,  whereby  the  time 
of  redemptiiin  by  the  debtor  !s  extended  beyond  the  year  given  by  the 
statute,  and  a  judgment  creditor  whose  judgment  is  obtained  after  the 
sale  or  agreement,  though  within  the  fifteen  months,  cannot  acquire  the 
purchaser's  interest  under  the  statute,  and  a  sheriff's  deed  to  him  will 
be  void.  The  purchaser  may  release  his  interest  altogether,  or  make 
any  other  agreement  in  good  faith  respecting  it  with  the  debtor,  without 
the  consent  of  the  junior  judgment  creditors,  and  .so  as  to  defeat  a 
redemption  by  them.' 

(S  528.  In  computing  the  time  of  redemption,  the  day  of  sale  is  to 
be  excluded  and  full  fifteen  calendar  months  from  such  day  are  to  be 
allowed.*  If  the  last  day  is  Sunday,  the  redemption  must  be  made 
the  day  before.'  On  a  .sale  made  on  the  first  of  January,  1855,  the 
debtor's  year  for  redeeming  will  expire  on  the  first  day  of  January, 
1850,  inclusive  ;  ami  creditors  have  until,  and  including  the  first  day 
of  April  thereafter  to  redeem.'  And  the  redemption  may  be  made  at 
any  time  before  twelve  o'clock  at  midnight,  of  the  last  day  of  the 
fifteen  months.^  And  each  other  creditor  entitled  to  redeem,  has  tweiAy- 
four  hours  after  the  last  redemption,  though  it  be  after  the  expiration 

1  2  R.  S.  622,  ()1o,  4tli  cd.       3  4  Cora.  565.     10  Barb.  97.    s  1  Wond,  42. 

L.ws  1847,  ch.  410,  (;3.  7  Cow.  510.     7  Hill,  91.       «  10  Wond.  87 

2  2  R.  S.  022,  <)()17,  7.S.  t  2  Cow.  518,  -  7  Hill   177 

Laws  1847,  ch  410,  ^^35,  G.      1  Cow.  481. 


•^28  or  Tin:  rf.df.mption  of  lands  sold. 

of  the  liftccn  iDonths.'  The  lime  ihercroic.  when  the  purchaser  will 
be  entitled  to  n  dccil  if  no  one  redeems,  will  be  the  day  iiIut  the  expi- 
ration of  the  fiMecn  months.  Thus,  if  the  sale  is  on  the  lirsl  day  of 
January,  he  w  ill  he  entitled  to  a  ilccd  im  the  second  day  of  April,  in 
the  year  thereafter.  And  su«h  will  he  the  time  where  a  creditor  has 
redeniiod  hi-lore  the  expiration  of  the  fifteen  ninnths.  IJul  if  he 
redoenjed  i»n  that  «lay,  no  «leed  ran  he  executed  to  him  until  the  expi- 
ration of  twenty-four  hours  from  the  lime  he  so  redeemed.^ 

^  52U.  After  the  expiration  of  the  time  lor  redeeming,  if  any  part 
of  the  premises  sold  shall  remain  unredeemed  hy  the  person  against 
whom  the  execution  issued,  «>r  hy  any  person  entitled  to  redeem  the 
same  within  one  year  from  the  lime  of  such  sale,  then  the  o(]i<!er 
making  such  sale  shall  complete  the  same  by  executing  a  conveyance 
of  the  premises  so  remaining  unredeemed,  either  to  the  original  pur- 
chaser, or  to  the  creditor  who  may  have  ac(]uired  the  title  of  such 
original  purchaser,  or  to  the  creditor  who  may  have  purchased  such 
title  from  any  other  creditor,  as  the  case  may  be  ;  which  conveyance 
shall  be  valid  and  efleclual  to  convey  all  the  right,  title  and  interest, 
which  was  sold  by  such  officer.^  If  the  certificate  of  such  sale  hae 
been  duly  assigned,  and  such  assignment  duly  acknowledged  or  proved, 
as  deeds  are  required  by  law  to  be  acknowledged  or  proved  to  entitle 
them  to  be  recorded,  before  some  oflicer  authorized  to  take  the  acknowl- 
edgment and  proof  of  deeds,  and  filed  in  the  ollice  of  the  clerk  of  the 
county  in  which  the  real  estate  sold  is  situated,  then  it  shall  be  the 
dutv  of  the  oHicer  making  such  sale  to  execute  a  deed  of  the  real 
estate  so  sold,  and  remaining  unredeemed,  to  any  person  or  persons  to 
whom  such  certificate  shall  have  been,  or  shall  be  so  assigned.*  And 
it  has  been  held  that  the  sherilV  may,  if  he  chooses,  execute  a  deed  of 
lands  so  sold  to  the  assignee  of  the  sherilV's  certificate,  though  the 
same  had  not  been  acknowledged  or  filed  as  aforesaid.^  In  case  the 
person  who  would  be  entitled  to  a  conveyance  of  any  real  estate  sold 
by  virtue  of  an  execution,  shall  die  prior  to  the  delivery  of  such  con- 
veyance, the  oflicer  making  such  sale  shall  execute  and  deliver  such 
convrvancc  to  the  executors  or  administrators  of  the  jiecson  so 
deceased.* 

g  Ij'.iO.  Though  the  sherifl^  has  actually  conveyed  the  land  to  a 
redeeming  credit<jr  and  who  has  sold  the  same  to  a  bona  fide  purcha- 
ser, it  will  be  no  answer  to  a  mandamus,  to  compel  him  to  convey  to 
the  one  really  entitled  to  the  j)remises.^ 

«  2  R.  8.  fi22,  (,16,  -llh  ••<!.  «  'ill.  R.  rM>3,  ^^,88, 4th  od.  «  2  R.  S.  374,  <;03. 
■  Lnwii  1817,  ch.  410,  ^4.  L.iwn  Ih.i;,,  di.  Ib'J,  ^^1,2.       M.  (\'22,  <u'.\  4lh  cd. 

»  M.  1  W.n.l.  •«(;.  1,1,  r,2.'»,  (^Hi. 

>  2R.  8.  373,  ^62.  «  7  Ilill,  yl.  Lawn  IKU,,  ch.  189,  ^1. 

U.  022,  ^72,  4lh  cd.  4  Dciilo,  480.  7  2  Com.  4b4. 


01'  TFFK  ui:i)I-:mi'TIon  of  lands  sold.  229 

;5  :>Al.  Such  (K'cd  limy  be  execuU-d  hy  I  he  shcrin'or  the  deputy  who 
made  the  sale,  and  at  any  time  during  the  continuance  of  su<:h  sherift* 
in  oilice,  or  after  tl»e  termination  thereof,  in  the  same  manner  as  he 
may  complete  the  execution  of  process  commenced  before  the  expira- 
tion ijf  his  term  of  oHice.'  Where  a  deed  is  executed  by  a  deputy,  it 
must  be  executed  in  the  name  of  the  sheriff.  But  if  the  deputy  who 
niade  the  sale  has  resigned,  or  been  removed  from  oflice,  or  otherwise 
vacated  the  same,  the  deed  must  be  executed  by  the  sherifl"  himself, 
for  a  deputy  can  do  no  act  after  the  relation  has  ceased.'  If  any 
sheriff  to  whom  an  execution  shall  be  delivered,  die  or  be  removed 
Irom  olHce  before  such  execution  be  satisfied,  his  under-sheriff  shall 
jnoreed  thereon,  in  the  same  manner  as  the  sheriff  might  have  done  ; 
and  if  the  sheriff  who  has  sold  any  real  estate,  die  or  be  removed 
before  executing  any  conveyance  in  pursuance  of  such  sale,  such  con- 
veyance shall  be  executed  by  his  under-sheriff  in  the  same  manner, 
and  with  tl;e  like  effect,  as  if  done  by  the  sherill?  If  there  be  no  such 
under-sheriff,  the  court  Irom  which  the  execution  issued  may,  on  the 
application  of  the  plaintill",  aj)point  some  suitable  person  to  proceed  on 
such  execution,  and  complete  the  same  instead  of  such  under-sheriff; 
and  on  the  ap])lication  of  any  person  entitled  to  a  convevance,  the 
court  may  appoint  a  proper  person  to  execute  the  same.  The  person 
so  appointed  shall  give  such  security  as  the  court  may  require,  and 
shall  have  the  same  power  in  relation  to  the  object  of  his  appointment 
as  the  sheriff  so  dying  or  removed."*  Where  nothing  is  to  be  dt>ne  by 
the  jjcrson  so  appointed  but  to  execute  a  conveyance,  the  court  has 
held  that  security  was  unnecessary  ^ 

^  53*2.  The  deed  must  bear  date  after  the'  time  for  redemption  has 
expired  ;  but  the  grantee  in  such  deed  shall  be  deemed  vested  with  the 
legal  estate  from  the  time  of  the  sale  on  such  execution,  for  the  purpose 
of  maintaining  an  action  for  any  injury  to  such  real  estate.'  The 
misrecital  of  a  judgment  in  a  sheriff's  deed  is  not  material,  provided 
it  appears  that  in  fact  the  sale  was  made  under  a  subsisting  judgment  and 
execution.^  If  in  the  recital  of  executions  in  a  sheriff's  deed,  under  which 
the  sale^'as  had,  they  are  described  correctly  in  several  particulars, 
but  others'are  adiled  which  are  inaccurate,  the  latter  may  be  rejected 
as  surplusage.  The  execution  need  not  be  set  forth  nor  recited,  and 
if  it  is  recited  or  described    inaccurately,  the  variance  will   not  affect 

>  Ante,  ^6.  3  2  R.  S.  374,  ^66.  «  2  R.  S.  373,  <;C1. 

10  John.  223.  M.  ('.2:1.  v>81,  -Ith  cd.  Id.  G21,  V)71,  4tli  ed. 

18      "7.  <  2  U.  S.  :;74,  <^m.  t  5  Cow.  529. 

7  Cow.  730.  M.  023,  v;82,  -ith  ed.  10  Jolin.  381. 

6  Wend.  213.  s  10  Wond.  5G2. 
3  Ante,  ^17: 


230  .  SALH  OF  LANDS  U.NDKR  DEClll-.ES. 

the  derd.'     Hut  ihr  lands  must  t>e  described  as  lully  in  the  deed  :l^s  m 
the  notice  of  sale,  or  at  lensl  sulliciently  to  identify  them.' 

^  r>:i:i.  The  shorilV's  deed  convoys  only  iho  legal  title  to  the  land. 
Actual  1  II.  where  the  defen<laut  refuses  to  deliver  it,  can  only 

be  olitai;  1    the   provisions  of  the  statute  ci»nct'rniiitr  summary 

proceedings  to  obtain  possession  of  land.' 

CHArTER   XXX. 

SALE  OF  LANDS  UNDER  DEGREES. 

^  53  4.  Shcrifls  may  sell  any  lands  in  llieir  res|teclive  counties, 
ordered  to  be  sold  by  any  decree  of  any  court  of  roconl  in  this  stale, 
and  give  conveyances  thdieof  in  the  same  manner,  and  with  the  like 
eflect,  as  heretofore  done  by  a  master  in  chancery.* 

^  535.  Where  lands  in  the  city  of  New  York  are  sold  under  a  decree, 
order  or  judgment  of  any  court,  they  shall  be  sold  at  j»ublic  vendue,  at 
the  Merchants'  Exchange,  between  twelve  o'clock  at  noon  and  liiree 
in  the  afternoon,  unless  otherwise  specially  directed.*  .  Where  the 
lands  are  situate  in  any  other  county  of  this  stale,  they  may  be  sold  at 
any  pjace  within  such  county,  and  they  may  be  sold  at  any  hour  of  the 
day  between  the  hour  of  nine  o'clock  in  the  morning  and  the  selling 
of  the  sun. 

<5  530.  The  notice  of  sale,  under  a  tlecrce,  of  lands  lying  in  any 
of  the  cilTes  of  this  state  in  which  a  daily  paj)er  is  printed,  except 
where  a  difler(*nl  notice  is  required  by  law,  or  by  the  order  of  the 
court,  shall  be  published  in  one  or  more  of  the  daily  papers  of  that  city, 
for  three  weeks  immedintely  previous  to  the  lime  of  the  sale,  at  least 
twice  in  each  week.  Where  lands  in  any  other  part  of  the  slate  are 
directed  to  be  sold  under  a  deeree,  notice  of  the  sale  shall  be  given  for 
the  same  time  and  in  the  same  manner  as  required  by  law  on  sales 
of  real  estate  by  the  sherifls,  on  execution.'  Three  copies  of  every 
such  notice  must  also  be  alTixed  in  three  public  j)laccs  of  the  town  or 
city  where  the  said  premises  are  to  be  sold,  for  the  same  length  of 
time  before  such  sale,  as  such  notice  is  re(|uired  to  be  published  ;  and 
if  the  i>remises  are  situate  in  any  olher  town  or  city  than  that  in  which 
Iho  sale  is  appointed  to  take  place,  then  three  similar  cojiies  of  such 
noti«*o  ^hrdl  .  '  '  illlNcd  lor  the  time  afoiesaid  in  the  town  or  city 
where  su 'h  ;  arc  situated. 

3  537.  The  notice  of  sale,  though  it  is  not  absolutely  necessary, 
should  contain  the  title  of  the  action,  or  at  least  the  name  of  the  first 

MM  -^  :    ■  '  Ml..  I  «  2  U.  8.  .174,  <yl',\  illi  od. 

«   1:;  .   1  L.iWH  1HI7,  eh.  'JWI,  (,77. 

li-'j  11 .  !  1    i"J.  !•  11 'III      I  »  KiiliH  .'^iili.  Court,  f)l. 

17     "     'Hil.  •  Uiil.H  Hup.  Coiiri,Gl. 

20     "     I'j  Ante,  ^476. 


SALI':  OF  LANDS  bNDlOR  JJlCCIUilCS.  'rjl 

plaintiirand  of  the  fust  defeiulant,  and  if  llioVc  arc  other  pariics  it  will  he 
siifrn'ient  to  add  "  and  othc.'r.s."'  And  it  must  contain  a  description  of  iho 
land  directed  to  be  sold.  In  such  cases,  the  safe  mode  is  to  copy  the 
doscription  of  the  preniiscs  from  the  decree. 

(5  r);jM,  'JMie  manner  of  jn'oceeding  upon  the  sale  is  the  same  as  under 
sales  upon  execution.  Where  the  premises  consist  of  several  distinct 
lots  or  parcels,  which  can  be  sold  separately  without  diminishing  the 
value  thereof  on  such  sale,  it  shall  be  the  duty  of  the  sherifl'  or  other 
person  conducting  the  sale,  to  sell  the  same  in  separate  lots  or  parcels, 
unless  otherwise  specially  directed  by  the  court.  But  if  the  sherilT  or 
other  jierson  is  satisfied  the  property  will  produce  a  greater  price  if 
sold  together,  than  it  will  in  separate  lots  or  parcels,  he  may  sell  it 
together,  unless  otherwise  directed  in  the  order  of  sale.'  Where 
mortgaged  premises  are  sold  upon  a  decree  of  foreclosure  and  a 
parcel  is  sold  by  the  sheriff  and  bid  otV  by  the  plaintiff,  he  is  not 
at  liberty  to  refuse  to  consummate  such  sale,  or  revoke  his  bid,  and 
direct  the  sheritV  to  resell  the  same  parcel  with  other  lands;  and  if  the 
sherill',  in  pursuance  of  such  direction  does  resell  the  same,  the  sale 
will  be  set  a^rde  as  irregular.' 

^  53U.  If  there  be  a  postponement  of  the  sale  for  any  purpose,  such 
postponement  shall  be  made,  and  notice  thereof  given  in  the  same 
manner  as  on  sales  of  lands  on  execution.  The  bare  announcement  of 
an  adjournment  to  a  future  hour  in  the  day,  or  to  the  next  day,  will  be 
sufficient.  But  if  the  time  is  beyond  the  next  day,  notices  of  such 
postponement  should  be  posted  in  the  same  manner  as  the  original 
notices  of  sale,  and  if  a  regular  publication  day  of  the  newspaper  or 
newspapers  in  which  the  original  notice  of  sale  was  published,  inter- 
venes, notice  of  such  postponement  shall  be  published  therein  once  or 
twice  a  week,  as  the  case  may  require,  until  such  adjourned  day. 

^  540.'  On  the  sale  of  mortgaged  premises,  the  sheriff  shall,  on 
receiving  the  amount  bid  from  the  purchaser,  execute  and  deliver  to 
sui'h  purchaser,  a  deed  of  the  premises,  and  he  shall  dispose  of  the 
moneys  realized  upon  such  sale  in  the  manner  he  may  be  directed  in 
and  by  such  decree.  In  case  of  a  surplus  arising  from  the  sale  of 
mortgaged  premises,  the  sheriff  or  referee  shall  retain  such  surplus, 
subject  to  the  order  of  the  court,  unless  directions  are  given  in  the 
judgment  or  decree  for  the  distribution  of  such  surplus.  But  in  the 
city  of  New  York,  the  sheritVor  rcfej-ee  shall  deposit  such  surplus  with 
the  chamberlain  of  the  city,  or,  when  so  directed  by  the  court,  with 
the  clerk  of  the  court,  within  five  days  after  such  surplus  shall  have 
been  received,  and  shall  be  ascertainable.* 

'6  Paige,  489.  a  Rules  Sup.  Court,  50.  3  s  How.  Pr.  R.  117. 

9  Paige,  259.  4  Rules  Sup.  Court,  47. 


232  SALH  OF  LANnS  liNDKR  DKCIIKHS. 

,5  •">ll.  <^n  t'xeoiiting  and  delivcrinc;  siwh  docd,  nnd  on  |>ayin[;  over 
the  moneys  reali/.cd  on  tkc  sale  of  mortgaged  premises,  the  slicrifl' shall 
then  make  and  fi\c  with  lhi»  oK'rk  of  the  court  in  which  the  drcree  was 
rendered,  a  re|H»rl  of  the  sale,  oontainin;»  a  full  statement  of  the  time  and 
manner  of  sale,  and  of  the  execution  of  the  deed  in  pursnanco  thereof, 
and  oft'  itioii  of  the  moneys  ;  and  of  his  doinirs  in  other  resj^ecls 

under  ^  ree  where  the  same  contains  any  other  special  pro- 

visions; to  which  report  he  must  annex  the  receipts  of  the  persons  to 
whom  he  jnay  have  paid  any  of  the  moneys  under  and  piirsiianl  to  such 
decree,  and  oi"  fhr  n(rii-«!-  l.'  \\li<>in  he  nnv  h:ivi'  n.-iiil  :iii\  siirphis  ai'ising 

on  said  sale 

21  r>l*J.  If  the  (Ici'rec  ul  SiiU-  is  m;iiio  iit  a  parliUuii  (msc,  the  notice 
of  sale,  whether  the  premises  are  situated  in  a  city  where  there  is  a 
daily  newspaper  or  not,  must,  as  in  the  case  of  sales  on  execution,  be  for 
six  weeks  ;  and  a  notice  for  three  weeks,  where  the  lands  were  situated 
in  the  city  of  New  York,  was  held  to  be  irregular,  and  the  sal"  wk 
declared  void.' 

<S  54.3.  On  making  a  sale  under  a  decree  in  partition,  the  >heriir 
should  require  that  a  portion  of  the  purchase  money  should  be  paid 
down,  say  ten  per  cent,  thereof,  as  security  that  the  purchaser  will 
perform  his  contract,  if  the  sale  is  confirmed  by  the  court.  If  the  sale 
is  not  confirmed,  but  a  new  sale  is  ordered,  the  moneys  so  paid,  must 
be  returned  to  the  purchaser.  As  soon  as  the  sale  is  made,  the  sherilV, 
before  executing  any  deed  to  the  ])urchaser  is  required  to  make  report 
to  the  court  of  his  doings  under  the  decree;  how  and  to  whom  the 
premises  were  sold,  and  the  amounts  bid,  and  paid  down,  and  when  a 
deed  is  to  be  executed,  if  the  s:de  is  confirmed.  Such  report  must  be 
delivered  by  him  to  the  plaintifl''s  attorney,  who  will  present  the  same 
to  the  court,  and  if  the  report  is  confirmed,  an  order  will  be  made 
directing  a  conveyance  to  the  purchaser  upon  his  com[)lying  with  the 
terms  of  the  sale.  The  sherill'  must  thereupon  execute  and  deliver  to 
the  purchaser  a  proper  deed  of  the  jiremises  sold,  on  receiving  the 
amount  of  the  purchase  money  ;  and  he  shall  dispose  of  the  moneys 
as  directed  in  and  by  said  decree,  and  take  proper  vouchers  f(»r  all 
payments  made  by  him  in  j»ursuanco  thereof;  and  after  he  shall  have 
made  such  payments  he  shall  make  and  file  with  the  clerk  of  the  court 
where  the  action  is  brought,  a  full  report  of  his  doings  under  the  decree, 
and  annex  such  vouchers  to  suclueporl. 

1 2  n  ?^  "?*^  ^'^' 
"i         "  '  ■       •1. 


ICXHCUTIONS  ACIAI.XST  'IIW.   r.oDV.  2'S^ 

CUAlTKll  XXXI. 
EXECUTIONS  AGAINST  THE  DOI>V 

i^  511.  The  writ  nf  cnpias  ad  satisrarienduin  or  execytion  against  th- 
body,  has  ahea<ly  l)ecn  spoken  ol^and  its  form,  and  the  rviles  apphcabic 
to  it  hriefly  pointed  out  in  speaking  of  executions  generally.' 

^  515.  It  is  dechired  that  execution  shall  not  issue  against  the  body 
in  those  cases  in  which  bail  shall  have  been  taken  on  the  arrest  of  the 
defendant,  and  the  bail  bond  shall  have  been  assigned  to  the  plaintifl"; 
and  in  those  cases  in  whifh  special  bail  shall  have  been  filcfl  ;  until  an 
execution  aijainst  the  rroods  and  chattels,  lands  and  teiicnients  of  such 
defendant,  shall  have  been  issued  to  the  sherifi'of  the  county  in  which 
such  defendant  was  arrested,  and  shall  have  been  returned  unsatisfied 
in  whole  or  in  part.  13ut  if  the  defendant  be  imprisoned  on  execution 
in  anotlier  cause,  or  upon  process  in  the  same  action,  or  shall  have 
been  surrendered  in  exoneration  of  his  bail  in  such  action,  an  execution 
may  issue  against  his  body,  without  any  previous  execution  against  his 
property.  Executions  either  against  the  body  or  against  the  property 
of  any  party,  may  be  issued  at  the  same  time,  to  shcrifTs  of  different 
counties;  but  no  execution  against  the  body  of  any  party  shall  issue, 
while  there  is  an  execution  against  his  property  not  returned  ;  nor  shall 
an  execution  against  the  property  of  any  party  be  issued,  while  there 
is  an  execution  against  his  body  unreturned,  unless  by  order  of  the 
court.  And  when  the  body  of  a  party  shall  have  been  taken  on  an 
execution  issued  for  that  purpose,  no  other  execution  can  be  issued 
against  him  or  his  property,  except  in  the  cases  specially  provided  by 
law.  But  if  any  person  who  shall  have  been  taken  on  an  execution 
shall  escape,  he  may  be  retaken  by  a  new  execution  against  his  body, 
or  an  execution  against  his  property  may  be  issued,  in  the  same  manner 
as  if  the  body  of  such  prisoner  had  never  been  taken  in  execution.' 

^  5-lG.  Notwithstanding  the  foregoing  provisions  of  the  statute  regu- 
lating the  issuing  of  executions  against  the  body,  it  will  be  the  duty  of 
the  sherifl"to  wliom  any  such  writ  is  directed  and  delivered  for  execu- 
tion, to  execute  the  same  according  to  the  command  thereof,  unless  the 
defendant  be  at  the  time  exempt  from  arrest;  and  it  will  be  immaterial 
to  him  whether  the  plaintifl'has  the  right  to  issue  any  such  j.rocess  or 
not.  If  the  process  is  not  void,  it  will  be  his  duty  to  execute  it,  though 
it  is  issued  without  an  execution  against  the  property.^  Nor  has  the 
sheriff  anything  to  do  with  the  irregularities  in  the  judgment  or 
process,  if  they  are  only  such  as  render  it  voidable.     And  if  it  be  not 

»  Ante,  §<i>403,  &c.  s  2  R.  S.  363,  ^^2-8.  3  6  How.  I'l .  R.  7:5. 

Id.  611,^^2-8,  4th  cd. 

31 


2o-\  i:xeci:tI()Ns  acjainst  Tin-:  ikw)y. 

void  ii|uui  ils  fare,  he  may  execute  it  if  he  will,  and  it  will  be  a  protec- 
tion to  him  even  thouj^h  it  is  nbsolululy  void,  for  reasons  which  do  not 
ajipear  on  its  face,  whether  he  was  aware  of  that  fact  or  not.  He  must 
be  jjovorncd  and  is  protected  by  the  jirocess,  and  he  cannot  be  airecled 
by  anything  which  he  has  learned  out  of  it,  as  goini;  to  impeach  it;  or 
he  may,  after  learning  the  fad  that  itjs  so  void,  decline  to  proceed  with 
it,  iifter  he  has  commenced  its  execution.'  But  if  the  process  is  void 
ujKin  ils  face,  it  will  atlbrd  the  orticcr  no  protection,  and  he  should 
decline  to  execute  it. 

^  fjlT.  The  time,  and  places  ot  arrest,  the  persons  who  may  be 
arrested,  and  the  manner  of  making  the  arrest  under  the  writ,  are  the 
same  as  under  mesne  process  in  civil  actions,  and  have  been  already 
pointed  out,  in  speaking  of  the  execution  of  pro("css  in  civil  actions 
generally.' 

^  548.  Upon  any  execution  being  issued  and  delivered  to  the  sheriff 
against  the  body,  in  an  action  where  bail  has  beenjjiven,  it  shall  be  his 
duty  to  use  all  reasonable  endeavors  to  execute  the  same,  notwith- 
standing any  directions  he  may  receive  from  the  plaintiff  or  his 
attorney.^ . 

(3  5J9.  When  the  sheriff  shall  have  arrested  the  defendant,  if  he 
will  not  pay  the  execution,  it  will  be  his  duty  to  take  him  forthwith  to 
the  jn'oper  jail  of  the  county,  and  commit  him  to  prison.  If  he  does 
not  do  so,  but  allows  him  to  go  at  large  again,  or  takes  him  elsewhere 
than  to  the  county  jail,  he  will  be  liable  for  an  escape.  But  it  has  been 
held  that  going  with  the  prisoner,  the  afternoon  on  which  he  was 
arrested,  two  miles  from  the  direct  road  to  the  jail,  to  a  tavern,  on  the 
prisoner's  suggestion  that  the  execution  might  perhaps  be  settled,  and 
then  going  with  the  prisoner  the  same  afternoon,  ^ne  mile  further,  to 
the  prisoner's  house,  to  enable  him  to  get  his  clothes  and  see  his  wife 
before  he  went  to  jail,  was  not  an  escape,  but  was,  under  the  circum- 
stances but  reasonable  and  proper.*  If  the  defendant  is  ready  to  give 
bail  for  the  limits,  ho  need  not  be  actually  committed  to  the  jail. 

2  SfjO.  Where  the  defendant  has  been  duly  arrested  on  one  process, 
and  is  in  the  custody  of  the  olliccr  thereon,  and  another  writ  is  placed 
in  the  hands  of  the  sheriff  against  the  same  jiarty,  he  is  thereby  in  the 
cu.Htody  of  the  sheriff  under  both  writs,  and  if  the  first  bo  settled,  or  the 
defendant  in  anywise  discharged  therefrom,  the  sheriff  must  not  dis- 
charge him  out  of  his  custody,  but  it  will  be  his  duty  to  hold  him  upon 
fuch  second  writ  also,  and  if  he  allow.s  him  to  go  at  large  it  will  be  an 
escape.*  And  .so  the  officer  must  detpin  him  upon  such  second  writ, 
even  if  the   first  arrest  was  illegal,  if  kucIi  arrest  was  made  without 

«  Atilo,  C2M3,  '  2  U   H.  W2,  ^.Tl  *  10  Jolin.  420. 

•  AiiU\  W^^J*),  Ac.  Id.  G.JO,  <;:{(),  llh  o<l.  »  Ante,  ^323. 


EXECUTIONS  ACIAINST  Till':  MolJV.  235 

the  connivance  of  the  slieriir  or  tlie  plaintill'  in  the  .second  cxccjition.' 
If  however,  the  prisoner  be  on  the  limits  ;it  the  time  of  the  dehvcry  of 
the  second  writ,  its  deHvery  to  the  sheriff  is  not  such  :in  arrest  as  to 
place  the  defendant  in  custody  on  the  execution.''  IJut  wliatwill  con- 
stitute an  escape  will  be  luoro  fully  illustrated  in  the  chapter  concerning 
escapes. 

•^  551.  The  sheriir  cannot  discharge  the  defendant  after  arrest,  unless 
the  judgment  or  execution  is  void,  or  the  party  is  absolutely  exempt 
from  arrest,  without  payment  of  the  execution.  And  on  making  such 
arrest,  he  cannot  discharge  the  defendant  on  receiving  security  from  the 
defendant,  not  even  a  draft.'  Nor  can  he  discharge  liim  by  direction 
of  the  plaintiff's  attorney,  unless  the  defendant  has  actually  paid  the 
defendant's  debt.  But  the  plainlilT  himself  may  authorize  his  discharge 
whether  he  has  paid  the  debt  or  not.  In  such  case,  however,  the  sheriff 
shouKl  require  the  written  direction  of  the  i)laintifr  before  he  discharges 
him.  If  the  arrest  be  in  an  action  for  a  penalty  where  one-half  goes 
to  the  informer,  such  party  cannot  authorize  the  release  of  the  defend- 
ant, f)r  discharge  the  judgment,  or  compound  with  the  defendant 
without  leave  of  the  court,  or  payment  of  the  judgment.  The  defend- 
ant's discharge  in  such  case  so  far  as  relates  to  the  moiety  of  the 
penalty  belonging  to  the  people  is  void,  and  cannot  excuse  an  escape.* 

^  552.  The  attorney  of  record  has  no  power,  as  such,  to  authorize 
the  sheriff  to  permit  the  defendant  to  go  at  large,  after  arrest,  without 
payment  of  the  debt,  even  for  the  purpose  of  seeking  to  obtain  the 
means  to  pay  the  execution,  and  if  the  sheriff  does  allow  him  to  go 
at  large  it  will  be  a  voluntary  escape.^  But  the  attornev  has  power, 
under  his  general  retainer,  to  acknowledge  satisHiction  of  the  judgment 
at  any  time  within  two  years  after  the  rendition  thereof,  and  on  his 
executing  and  delivering  such  satisfaction  piece,  the  sheriff  may  release 
the  j>risoner  unless  he  has  notice  that  the  authority  of  such  attorney 
has  been  revoked.*  But  if  the  de!)t  has  not  been  actually  paid,  the 
defendant  will  not  be  discharged   from  such  judgment.^' 

i5  553.  The  taking  the  defendant  in  execution  operates  as  a  satisfac- 
tion of  the  judgment  during  the  tune  that  the  party  is  under  arrest.' 
The  plaintiff  cannot  during  this  time,  issue  other  process  against  the 
defendant's  property  on  such  judgment;  and  during  such  time  it  ceases 
to  be  a  valid  judgment  for  the  purposes  of  redeeming  lands  of  the 
defendant  sold  upon  another  execution.^     But  the  arrest  of  one  of 

«  0  John.  2Ga.  *  11  Jolin.  476.  8  13  John.  633 

Graham's  Pr.  411.  s  10  Jolin.  220.  1  Cow.  66. 

s  8  .lohii.  379.  «  2  R.  S.  3(i2.  f)24.  »  ,Vnte,  <)510. 

3  8  John.  98.  M.  (;<t9,  (y22,  4th  cd. 

9     "     263.  '  10  Paige,  126. 
13  "     306.  21  Wend.  362. 


•>36  \\\Ul  i)K  POSSKSSION. 

several  ilffeiidanUi,  is  nol  a  ilistliai^c  ol  llie  judgmcnl  so  as  to  jirevcnt 
the  arrcsling  or  collecting  llio  judgment  out  of  the  other  delendants. 
If  after  arrest  the  plaintilV  discharge  the  defendant  vohmtarily,  out  of 
cusloily,  it  will  be  a  discharge  of  the  judgmcnl,  and  he  cannot  alier- 
wards  have  him  arrested  on  the  same  judgment,  even  where  the 
defendant  agrees  that  he  may  be  arrested.  And  so  if  the  plaiiilUr 
consent  to  the  discharge  of  one  of  several  defendants,  ho  cannot  after- 
wards retake  him  or  any  of  the  others  on  the  same  judgment.  But  if 
ihe  defendant  is  discharged  from  arrest  on  the  ground  of  irregularity 
in  ihe  execution,  or  arrest,  or  because  the  defendant  was  temporarily 
exempt  from  arrest,  a  new  execution  may  issue  against  the  body. 
And  so  if  the  defendant  escape  or  l)e  improperly  discharged  from 
arrest,  new  executions  may  issue  against  Ids  body  or  against  the  i>ro- 
perty.'  And  if  he  is  improperly  discharged  by  the  sheritl',  without  the 
plaintifl's  assent,  it  will  be  an  csca|»e,  and  he  may  retake  him  on  the 
execution  or  issue  a  new  one,  or  seek  his  remedy  against  the  sherilF 
for  such  escape.  If  the  defendant  be  discharged  from  imprisonn)ent 
under  the  statute  concerning  imprisoned  debtors,  new  executions  may 
be  issued  against  his  property,  but  he  cannot  be  arrested  under  such 
judgment  f  and  if  he  die  in  execution,  a  new  execution  may  issue 
against  his  property.'  What  is  an  escape,  and  in  what  cases  the 
prisoner  may  be  retaken  after  an  escaj)e,  and  the  times  and  places 
where    the    ;irirst    iu:iv    lir    ininle    In     lli  •    sliciin"  wiil    lio    jmlntcd    uut 

Iiereafter. 

fllAlTKIl   XXXIl. 

WlilT  OF  POSSESSION. 

i5  55l.  Thewiii  <•!  ji'sc-sum  is  the  process  under,  and  by  virtuo 
oi  which  the  sherifl'  is  authorized  and  commanded  to  deliver  to  the 
plaintiff,  in  an  action  of  ejectment,  or  in  an  action  for  dower,"  the  pos- 
.*■'  '   lanils  recovered   in  such  action.     The  ibrm   of  the  writ  is 

pi  i  by  the  Revised  Statutes  ;•  and  .some  of  its  characteristics 

have  already  been  pointed  out.'  Under  this  writ  it  is  the  duty  of  the 
shcrilT  to  i  "     icrsons  from  the  jjremises  deserilxd  in  the  writ, 

and  ol  wi.        _  II  is  to  bo  given,  ami  all  goods  and  jimperlv  that 

may  be  thereon,  and  to  |»ut  the  plaintilF  into  full  and  complete  posses- 
s  •  •*<      If  there   be  several   tencmcnis  in  pos.session  of 

>  it  is  necessary   that   pos^i  vsiou  should  be  given  of 


1    !•,..„      'I-.'-' 

»2P 

1'! 

kj   ■ 

nil  c<l. 

•J  II.  S.  n08,  (yU. 

I'l.  r.d'.i,  <yj7,  ith  cd, 

od. 

♦  I'. 

'  Aiii<'.  V(>iu;j,  &c. 

2H 

»  2  I; 

■■'>. 

JU.  .. 

U  cd. 

M 

nil  od. 

\VK1T  Ul-   POSSKSSlOxN.  237 

each;    but  if  llieic  be    several   tenenienls  in   the    pfi^ses^jon    ol  one 
(Iclcrulant,  the  delivery  of  possession  of  one  is  a  good  delivery  of  jjos- 
sessionof  llie  whole.     The  possession  given  by  the  sherifl'  is  full  and 
actuid  possession,  and  the  writ  is  not  fully  executed  until  sip  '. 
sion  has  been  given,  and  the  plainlill'  is  left  in  the  (|uiftl  po-  a 

the  premises.  I'he  writ  may  also  direct  the  collection  of  the  costs  of 
the  action,  under  which  the  duties  of  the  sherill'  will  be  the  same  as 
under  an  execution  for  the  collection  of  moneys  in  an  ordinary  action.' 

^  555.  The  sheriir  executes  the  writ  under  the  direction  of  the 
plainiijr  or  his  attorney  ;  and  he  may  first  demand  an  indemnity.^ 
i'he  i>arty  or  his  attorney  is  bound  at  his  peril  to  point  out  the  land 
recovered,  and  of  which  possession  is  to  be  given  ;  and  if  the  sherifT 
U'ives  possession  of  any  lands  not  in  the  writ,  he  will  be  a  trespasser. 

^  550.  The  powers  and  duties  of  the  sherifl'  under  the  writ  of  pos- 
session, are  more  extensive  than  in  the  execution  of  process  generally 
in  civil  actions,  lie  may,  as  in  other  cases,  call  to  his  aid  the  power 
of  the  county  in  executing  the  process,  if  he-  fears  violence,  and  he 
may  break  open  all  doors  necessary  to  deliver  possession,  though  he 
should,  as  in  other  cases,  first  signify  the  cause  of  his  coming,  and  ask 
that  they  ma)'  be  opened. 

§  557.  If  the  olRcer  be  disturbed  in  the  execution  of  the  writ,  the 
court  will,  upon  affidavit,  grant  an  attachment  against  the  person  dis- 
turbing him,  whether  he  be  the  defendant  or  a  stranger,  even  if  it  be 
after  the  execution  of  the  writ  is  completed ;  as  where  the  oflicer  leaves 
the  i)laintifi'  in  possession,  and  the  defendant  presently  ejects  him  from 
such  possession,  the  court  will  grant  an  attachment  against  the 
defendant. 

§  558.  Where  the  writ  is  not  made  returnable,  as  it  seldom  is,  the 
sherifl' may,  under  it,  remove  the  defendant,  or  one  claiming  under  him, 
from  the  premises  as  often  as  he  intrudes  ujion  them.  But  if  a  stranger 
so  intrudes,  that  is,  one  claiming  not  under  the  defendant,  but  bv,  and 
under  a  different  title,  the  sherifl' cannot  remove  him  from  the  premises 
under  such  writ.^  In  such  case  the  jtlaintifl'  must  resort  to  other  pro- 
ceedings to  obtain  possession  of  the  land.  Where  there  is  any  doubt 
as  to  how  or  by  what  claim  of  right  a  person  intrudes  upon  land,  the 
sherifl'  cannot  be  compelled,  without  the  direction  of  the  court  to 
remove  such  pc^rson,  and  in  all  such  cases  of  doubt,  the  oificer  should 
before  removing  the  party  require  that  the  plaintilF  first  apply  to  the 
court  on  notice  to  such  person,  for  an  order  directing  the  sherifl'  to 
remove  him.     If  such  order  is   made,  it  will   be  a  protection  to  the 

1  2  R.  S.  1^08,  <)34.  2  Allon,  247. 

Id.  6(50,  <)27,  4th  ed.  3  n  Wend   182. 

2  R.  S.  :J42,  ^22. 
Id.  598,  <^22,  4th  ed. 


238  IMPIUSDNMKN  r  IN  (M\  IL  ACTIONS. 

sheriir  If  iho  writ  has  heen  rctmiu'il  to  tlu*  projicr  ollire,  llu'  (lutiL-s 
o(  the  sherifT  thereunder  are  at  an  end,  unless  the  court,  direrl  his 
return  to  be  stricken  out,  and  the  writ  returned  to  him  to  he  farther 
executed. 

(II  \VV\Al  WMII. 

IMrRlSoNMKNT  IN  CIVIL  ACTIONS. 

^  rjAJ).  When  a  prisoner  is  brought  to  the  jail  for  commitment,  upon 
civil  process,  hv  any  olfn-er  other  than  the  sherilFor  one  of  his  deputies, 
the  jailer  bef«)re  receiving  him  should  ascertain  that  the  ortieer  has 
nuthorily  to  make  the  arrest,  and  that  it  is  his  duty  to  receive  the 
prisoner.  An<l  if  the  \varranl  or  executior.  uj)on  which  he  is  arrested 
does  not  recpiire  the  olliccr  executing  it,  to  return  the  same  to  the 
court  or  officer  issuing  it,  the  jailer  should  require  such  process  to  be 
left  with  him  for  his  authority  and  protection,  after  the  constable  or 
marshal  has  made  a  due  indorsement  of  the  arrest  thereon.  If  such 
process  must  be  returned  tt>  the  court  or  oflicer  issuing  it,  then  the 
jailer  should  require  such  constable  or  marshal  to  leave  with  him  a  true 
copy  of  such  execution,  with  all  the  indorsements  thereon,  with  his 
return,  and  the  whole  duly  certified  by  such  ollicer.  And  in  cither 
case,  there  should  likewise  be  indorsed  a  statement  of  the  fees  of  such 
offjccr,  uj>on  executing  such  writ,  that  the  jailer  may  know  what  to 
receive  incase  the  execution  is  paid.  The  jailer  should  make  an  entry 
of  the  time  of  commitment  of  the  p  risoner,  and  under  what  process ; 
when  let  to  bail  UjKm  the  limits,  and  when  discharged  ;  but  it  is  not 
necessary  to  make  all  the  entries  he  is  required  to  do  in  the  case  of 
one  committed  on  criminal  process. 

<5  ."500.  When  a  prisoner  shall  be  committed  to  the  jail  of  the  county 
upon  civil  process,  the  sherifl'  or  jailer  thereof  shall  not  sufler  such 
prisoner  to  go  without  the  prison,  except  uj)on  his  giving  bail  lor  the 
limits  in  the  cases  where  he  may  be  let  to  bail ;  or  in  pursuance  of  the 
•  oiiiumnd  of  a  writ  of  habeas  corpus  duly  granted,  or  order  of  the 
court;  upon  the  necessary  removal  of  such  jjrisoner  to  another  jail,  in 
t'  '         'i-  may  be  so  removed  ;  upon  payment  of  the  judgment 

<  :  ■■  he  is  corumitled,  or  on  the  cancelmeiit  of  the  judg- 

ment of  record,  or  by  the  direction  of  the  |il;iiiililV.  wliich  direction 
outrht  to  ■  '.  and  the  directi<»n  of  the  attorney  for  the  plaintilT 

will   not  :  •    as    he  has  no   j)ower  to  di'-chargo    the  j>risoner 

withoul  actual  payment  of  the  debt  ;  on  the  discharge  of  the  defendant 
by  a  proj>cr  court ;  or,  when  he  is  committed  uj)on  a  justice's  judgment, 
at  the  expiration  of  the  tiim:  for  which  he  shall  remain  committed,  on 
his  making  the  proper  nflidavit,  to  entitle  him   to  his  discharge  as 


IMPRISONMENT  IN  CIVIL  ACTIONS.  239 

hereinafler  inentioucd.  11"  such  slicrlU'or  jailer  shall  suircr  any  j)erson 
so  coniinittcrl  on  civil  j)roccss,  to  go  or  beat  large  beyond  the  liberliea 
of  the  jail,  except  in  the  cases  mentioned,  he  will  be  liable  for  an  escape. 
And  so  they  will  be  liable  for  an  escape,  if  he  goes  beyond  the  liberties 
without  leave,  unless  lie  shall  return  within  such  liberties  before  suit  is 
brought. 

^  501.  rrisoncrs  arrested  on  civil  process,  shall  be  kept  in  rooms 
sejiarate  and  distinct  from  those  in  which  prisoners  detained  on  criminal 
charge  or  conviction,  shall  be  confined  ;  and  on  no  pretence  whatever, 
shall  prisoner^  on  civil  and  criminal  process,  be  put  or  kept  in  the 
same  room.  ]\Iale  and  female  prisoners,  unless  they  be  husband  and 
wife,  shall  not  be  put,  kept  or  confined  in  the  same  room  in  any  prison.' 

^  5G2.  Whenever  any  person  shall  be  arrested  by  virtue  of  an 
execution,  issued  upon  any  judgment  rendered  in  a  court  of  record,  or 
surrendereil  in  exoneration  of  his  bail,  or  uj»on  anv  other  pnjccss  in  a 
civil  action,  whether  issuing  from  a  court  of  record  or  not,  he  shall  be 
safely  kept  in  secure  custody,  in  the  manner  prescribed  by  law,  at  his 
own  expense,  until  he  shall  satisfy  such  execution,  or  be  discharged 
according  to  law.'  If  any  person  be  arrested  and  kejit  in  any  house 
other  than  the  jail  of  the  county,  neither  the  officer  arresting  him,  nor 
the  person  in  whose  custody  such  person  may  be,  shall  demand  or 
receive  from  such  prisoner,  any  other  or  greater  sum  for  lodging,  drink, 
victuals,  or  other  necessary  things  than  shall  have  been  prescribed  by 
the  court  of  sessions  of  the  county;  or  if  no  rate  shall  have  been 
prescribed  by  such  court,  such  officer  or  person  shall  not  receive  any 
other  or  greater  sum  than  shall  be  allowed  by  a  justice  of  the  peace  of 
the  same  town,  upon  proof  that  the  lodgings  or  other  things  furnished, 
were  so  furnished  at  the  request  of  the  prisoner.  And  in  no  case  shall 
such  oflicer  or  person  demand  or  receive  any  pay  or  compensation  for 
any  spirituous  liquors,  sold  or  delivered  to  such  prisoner.'  A  prisoner 
so  kei»t  in  any  house,  may  send  for  and  have  any  beer,  ale,  cider, 
victuals  and  other  necessary  food,  and  such  bedding,  linen  and  other 
necessary  things,  as  such  prisoner  shall  think  fit,  where  and  from  whom 
he  pleases,  without  any  detaining  or  paying  for  the  same,  or  any  part 
thereof,  to  the  oflicer  arresting  him,  or  to  the  person  in  whose  custody 
such  prisoner  may  be.  And  no  sheriff,  jailer  or  other  officer,  shall 
demand  or  receive  any  money  or  valuable  thing  whatsoever,  for  the 
chamber  rent  of  any  prison,  or  any  fees,  compensation  or  reward,  for 
the  commitment,  detaining  in  custody,  release  or  dischan^e  of  anv 
prisoner,  other  than  such  fees  as  are  allowed  by  lav..* 

1  2  R.  S.  428,  <)()S,  10.  3  2  R.  S.  42G,  ^3.  <  2  R.  S.  427  (/A  5 

Id,  672,  %S,  10.  Id.  670,  ^8,  4th  cd.  Id.  670,  <s<)i,  5,  4tii  cd. 

S2R.  S.  376,  V)>)7G,  77. 
Id.  626,  ^^yS,  99,  4tlj  ed. 


340  i.M PRISON mI':nt  in  civir.  actions. 

;5  rin;].  Any  slirrift*  or  other  ollicer,  who  shall  olTend  n^oinst  any  of 
the  preceding  provisions,  concerning  tho  manner  of  confining  pris- 
oners, nnd   (•!  iiHf  p:iy    from  prisoners  other  than  is 

jvivi-ii'i-cl  b\ ;  lo  the  party  aggrieved,  three  limes  tho 

'  oiind  by  the  jury;  nnd  shall  be  liable  to  an  indietment  for  a 

:  .       ''    upon  conviction  tlierer)!*,  in  addition   to  any  other 

j  i...  * ..;.  , forfeit  his  oflice  or  place.' 

^  5(11.  It  shall  be  the  duty  of  the  sheriff  of  the  several  cities  and 
counties  of  ihi»-  slate,  to  receive  into  their  respective  jails,  and  keej)all 

!  ■      who  shall  be  committed  to  the  same,  by  virtue  of  any  civil 

1  sued  by  any  court  of  record,  instituted  under  the  authority 
of  tho  I'nifed  f:>tates  of  America,  until  they  shall  be  discharged  by  the 
i-p  fourse  of  the  laws  of  the  United  States,  in  the  same  manner  as  if 
i  prisoners  had  been  committed  by  virtue  of  process  in  civil  actions 
issued  under  the  authority  of  this  state  ;  and  every  such  sherill'  may 
receive  to  his  own  use,  such  simis  of  money  as  shall  be  |)ayabl(!  by  the 
United  States,  for  the  use  of  the  said  jails  ;  and  every  such  sherilf  or 
keeper  to  whose  jail  any  prisoner  shall  be  committed,  by  any  marshal 
or  other  ofllcer  of  the  United  States,  shall  be  answerable  for  the  safe 
keeping  of  such  prisoner,  in  the  courts  of  the  United  Slates  according 
to  the  laws  thereof.' 

^  .■>(">."►.   "  '  the  court  shall   oi-(Kr  the   (li>cli:irgc  of  a   jirisoner, 

ujir.ii  Iks  I  <•   under  tho   insolvent  laws   of  this  state,  the  sherilf 

shall  discharffe  him  on  being  served   with  such  order,  without  any 

MUt  of  any  fees,'  and  the  assignees  of  such  debtor 

>         ,  _s  out  of  the  proceeds  of  the  assigned  j>roperty.* 

^  5(10.  If  a  prisoner  committed  on  a  justice's  execution,  or  on  an 

ition   is.stjed  by  the  county  clerk  upon  a  transcript  of  su(^i  judg- 

;.  has  a  family  in  this  stale  for  which  he  provides,  and  he  be  not  a 

freeholder,   he   shall    be    discharged    from    jail    after    ho   shall    have 

in  prison  thirty  days  ;  and  if  he   have  no  family,  nn«l  be  not 

'   '•  he  shall  be  discharged,  after  remaining  in   prison   sixty 

lolivering  to  the  sherifl'or  jailer,  an  affidavit,  tnken  before 

er  aulhorizod  to  take  aflidavils,  sttiting  the  title  of  the  action 

1  1  ..  ' "     •  ■■:'nitteil,  and  the  officer  who  issued  tho  execution  ; 

tho  1  lit,  and  that  he  has  remained  in  jail,  or  upon  the 

m  tho  time  of  such  commitment,  until  the  time  of  making 

•  '  •  ''nt   he  was  not  at   the  time  of  such  connnitment  and 

;  r.  ond  thai  he  has  at  the  time  of  making  such  affidavit, 

a  family  in  this  state,  mentioning  the  place  therein,  for  which  he  pro- 

'  'J  l:  1  »  2  n.  H.  .'M,  a  1 .  «  2  R.  8.  .1.1,  (Ar,,  mib.  1, 

M  ■'  M.  212,^11,  nil  i<l.       .         1.1.  213,  ^l6,Hflb.  l.ltlicd. 

«  2  U 

Id    •  llh  «<1 


I.Nri'KISONMKNT  IN  CIVIL   ACTIONS.  2i\ 

vides,  or  that  he  has  no  lamily  for  which  he  provides.  If  it  appears 
from  siicli  adidavit  that  the  prisoner  has  such  family,  and  has  remained 
in  jail  or  on  the  liberties  for  full  thirty  days,  or  if  he  has  not  surh 
family,  for  sixty  days,  the  sheriff  or  jailer  sh.all  discharire  him  :ind  file 
the  allidavit  with  the  county  clerk,  who  shall  file  the  same  without  fee 
or  reward  ;  and  a  refusal  to  discharge  the  defendant  on  his  tendering 
sucli  ankiavit,  sui)jects  the  ollicer  to  a  penalty  of  twenty-five  dollars 
for  every  dayj^he  shall  detain  such  prisoner,  to  he  recovererl,  with  costs, 
by  the  party  aggrieved,  to  his  own  use  in  addition  to  any  damages  he 
may  recover  for  the  false  imprisonment.'  The  sherifiT  is  bound  to 
discharge  the  defendant  from  prison,  on  receiving  such  afiidavit,  with- 
out inquiry  into  the  truth  thereof,  and  whether  the  prisoner  be  on  the 
limits  or  in  jail.'^  And  such  airidavit,  or  a  copy  thereof,  duly  certified 
by  the  cleric  of  the  county,  under  the  seal  of  the  court  of  conunon 
pleas,  may  be  given  in  evidence  in  any  action  against  him  for  such 
discharge,  and  the  same  will  be  a  justification  and  defence.  In  com- 
puting the  time,  the  day  of  commitment  is  to  be  excluded,  and  full 
thirty,  or  sixty  day.s,  as  the  case  may  require,  must  have  expired  before 
he  can  be  discharged.  Thus,  if  the  commitment  was  made  on  the 
twenty-fifth  of  August,  he  cannot  be  discharged  until  the  twenty-sixth 
of  September,  in  the  first  case,  and  in  the  other,  until  the  twenty-sixth 
of  November.^  If  the  defendant  is  a  freeholder,  he  must  remain  in 
prison  until  the  debt  is  paid.* 

^  567.  When  any  defendant,  at  the  time  judgment  shall  be  ren- 
dered against  him,  in  any  court  of  record,  shall  be  in  the  custody  of  a 
sheriff  or  other  officer,  either  upon  process  in  the  suit  in  which  such 
judgment  shall  have  been  rendered,  or  upon  being  surrendered  in 
discharge  of  his  bail  in  such  suit,  the  plaintiff  in  such  judgment  shall 
charge  such  defendant  in  execution  thereon,  within  three  months 
after  the  last  day  of  the  term  next  following  that  at  which  such  judf^- 
ment  shall  have  been  obtained.  And  where  any  defendant  shall  be  in 
custody  upon  a  surrender  in  discharge  of  his  bail,  made  after  a  judf^- 
ment  obtained  against  him,  and  such  bail  shall  l)e  thereupon  exonerated, 
the  plaintitVin  such  judgment  shall  charge  such  defendant  in  execution 
thereon,  within  three  months  after  such  surrender,  or  if  an  execution 
against  the  property  of  such  defendant  shall  have  been  issued,  within 
three  months  after  the  return  day  of  such  execution.  If  any  plaintifl' 
shall  neglect  so  to  charge  the  defendant  in  execution  as  aforesaid,  such 
defendant  may  be  discharged  from  custody  by  a  supersedeas  to  be 
allowed  by  any  judge  of  the  court  in  which  such  judgment  shall  have 
been  obtained,  unless  good  cause  to  the  contrary  be  shown  ;  and  after 

»  2  R.  S.  252,  ()^152-156.         a  n  Jobn.  174.  *  2  Cow  Tr  556 

Id.  448,  ^^134-139, 4tlicd.  3  10  Barb.  117.  "      ' 

32 


242  LIMKUTIKS  OF  THE  JAIL. 

beinj;  so  ilischarpcil   such  cloloiidant  shall  not  be  liable   to  be  anosled 
upon  any  execution  which  shall  bo  issued  upon  such  judgment.' 

<1I  M'Tr.i:   XW'IW 

LinKRTIKS  OF  TIIK  .TAIL 

2>  riOH.  Kverv  person  who  shall  be  in  the  custody  of  the  sheriff  of 
any  county,  by  virtue, 

1.  Ot  any  rnpias  a«i  respondendum,  or  judge's  order  :   or, 

2.  Of  any  execution  in  a  civil  action  :  or, 

3.  Hy  virtue  of  any  attachment  for  the  non-payment  of  costs  in  a 
civil  action  :  or, 

1.  In  consequence  of  a  surrender,  in  exoneration  of  liis  bail: 
Shall  be  entitled  to  be  admitted  to  the  liberties  of  the  jail  which  shall 
have  been  established  in  such  county,  according  to  law,  upon  executing 
a  bond  to  such  sheritTand  his  assigns,  as  hereinafter  mentioned.' 

^  509.  But  the  following  persons,  when  in  custody,  are  not  entitled 
to  the  liberties  of  the  jail : 

1.  The  father  and  mother  of  a  bastard  :' 

2.  One  committed  for  waste  :* 

3.  When  the  defendant  is  committed  on  a  judgment  for  trespass  on 
state  lands  :' 

4.  One  committed  for  the  non-payment  of  a  penalty  under  the  statute 
relative  to  excise,  and  the  regulation  of  taverns  and  groceries,  or  under 
the  statute  relating  to  fisheries  :* 

5.  One  committed  for  the  non-payment  of  a  penalty  under  the  laws 
relative  to  the  manufacture  of  salt  :^ 

C.  One  committed  upon  any  ]>rofcss  issued  by  any  officer  or  court, 
including  courts  martial,  for  contemj>t  or  misconduct  in  the  cases 
pi'escribed  by  law  :' 

7.  One  committed  to  jail  under  the  provisions  of  the  non-imprison- 
ment act ;  and  under  the  i)rovisions  of  the  Code,  concerning  i>roceedings 
supplementary  to  the  execution  : 

8.  One  cMi  the  lintits  who  escapes,  is  not  entitled  to  them  again  on 
recapture  :* 

3  .'»"^>.   A    prisoner  entitlcil  to   the  liberties  of  the  jail,  shall  llrst 

>  2  n  h  ^'O'.,  •/,",'-.,  :::  «  2  R.  H.  83S,  </2S.                   »  2  R.  H.  437,  f>01. 

M.7-T  •     iT.Jthcl           M  '''l.-',_"^..|llic<l.                M.  r,Kl,<^M,.Jthod. 

«2B  '  •!'                   70.                        4  r.-iipo,  i'«2,  8a7. 

M   ■  •'■0                     I  .                    ithcd.             »  .Vllcii,  214. 

V<r.  *  '2  H  !•  j.:,\.  vU;l. 

4  r  '7.                     M  ir-^lJO,  4Uii'<l 
•  IK.-  ".,,., /1 7.  20.  ar, 


M   117,  <\12<',,  .|ih  i'( 

1 1  H  H.  27it,  ar,». 


2  R.  8.  69,  ^<>17,  20,  ?»  Id.  &64,  ^^230,  2,  4lh  cd. 


LiinaiTiHs  OF  Tin-:  jail.  243 

execute  a  bond  hy  iiimself  and  one  or   more  sullirient  surcli«;»,  heinj^ 
householders  ol"  the  county,  in  a  ju'nalty  which  shall  he  as  lollows : 

1.  It  shall  not  he  less  than  douhle  the  amount  of  the  sum  in  which 
the  sheriir  was  rcrpiired  to  hold  the  defendant  to  hail,  if  he  he  in  custody 
on  mesne  process,  or  he  surrendered  in  exoneration  of  his  hail  hefore 
judgment  docketed  against  him  : 

2.  It  shall  he  not  less  than  douhle  the  amount  directed  to  he  k-vied 
by  the  execution  or  attachment,  if  he  be  in  custody  upon  attachment 
or  execution  : 

3.  It  shall  not  he  less  than  double  the  amount  for  which  the  judgment 
shall  have  been  rendered  against  him,  il  he  he  surrendered  after  judg- 
ment docketed.* 

As  the  sheriff  is  primarily  liable  for  the  escape  of  the  dclendant,  it  is 
important  that  he  should  see  that  the  sureties  to  the  bond  are  not  only 
good  at  the  lime,  but  such  as  will  be  able  to  respond  to  him  in  any 
damages  he  may  thereafter  sustain,  by  reason  of  the  escape  of  the 
defendant.  Tlie  sherifl'  lias  the  right  to  insist  upon  the  most  ample 
security,  before  he  allows  the  defendant  the  liberties  of  the  jail. 

^  571.  Such  bond  shall  be  conditioned  that  the  person  so  in  custody 
of  such  sheritr,  shall  remain  a  true  and  i'ailhful  prisoner,  and  sliall  not, 
at  any  time,  or  in  any  manner,  escape  or  go  without  the  limits  and 
boundaries  of  the  liberties  established  for  the  jail  of  such  county,  until 
discharged  by  due  course  of  law.''  The  condition  of  the  bond  must 
conform  substantially  to  the  terms  of  the  act,  or  it  will  be  void.  Thus, 
where  there  was  a  condition  to  the  bond  that  the  defendant  should  at 
the  request  of  the  sheriff  surrender  himself  to  the  prison,  it  was  held 
void.'  And  so  where  the  sheriff,  in  addition  to  the  bond,  took  a  warrant 
of  attorney  to  confess  judgment,  on  which  a  judgment  was  entered  and 
execution  issued,  the  court  ordered  them  set  aside,  as  the  warrant  was 
void.*  Every  such  bond  when  in  due  form,  taken  for  the  liberties  of 
any  jail,  shall  be  valid  and  shall  be  held  for  the  indemnity  of  the  sheriff 
taking  the  same,  and  of  the  party  at  whose  suit  the  prisoner  executing 
such  bond,  shall  be  confined.^ 

^  572.  If  a  sheriff  who  shall  have  taken  any  such  bond  for  the  liberties 
of  any  jail,  shall  discover  that  any  surety  to  such  bond  is  insufficient, 
he  may  commit  the  prisoner  who  executed  the  same,  to  close  confine- 
ment in  such  jail,  until  other  good  and  sufficient  sureties  shall  be  found. 
And  the  sureties  in  any  such  bond  may  surrender  their  principal  at 
any  time  before  judgment  shall  be  rendered  against  them  on  such  bond; 
but  such  bail  shall  not  be  exonerated  thereby  from  any  liability  incurred 

»  2  R.  S.  433,  ^41.  3  19  John.  233.  s  2  R.  S.  433,  f>43. 

Id.  678,  ()61,  4th  cd.  <  1  Johu.  Ca.  129.  Id.  G79,  ^63,  4th  cd. 

2  2  R.  S.  434,  <^42. 

Id.  679,  ^62,  4th  ed. 


v>44  Lini'.iiTiKs  OF  rni':  jaii.. 

before  the  making  such  suriciMler.  Such  surrender  mav  he  made  as 
follows:  the  bail  may  take  ihe  jirincipal  to  the  kee|)er  of  ihe  jail,  and 
upon  the  written  re<|uiremcnt  of  su<'h  hail,  the  keeper  shall  lake  such 
principal  into  his  custody,  and  thereupon  indorse  upon  the  bond  given 
for  the  limits,  an  acknowledgment  of  the  surrender  of  such  principal; 
.•md  such  keeper  shall  also,  if  rctpiired.  give  the  bail  a  certificate 
acknowledging  such  surrender.'  But  the  bail  arc  not  entitled  to  have 
the  bond  returned  to  them  on  such  surrender,  after  suit  brought  on 
such  bond." 

v^  Cil'A.  The  keeper  of  every  jail  to  whom  a  ccrlilicd  copy  of  the 
minutes  of  the  county  court,  establishing  the  liberties  of  such  jail  shall 
be  delivered,  shall  keep  the  same  exposed  to  public  view,  in  some  open 
and  public  part  of  such  jail ;  and  it  shall  be  the  duty  of  such  jailer  to 
exhibit  the  same  to  every  person  who  shall  be  admitted  to  the  liberties 
of  such  jail,  at  the  time  of  executing  the  bond  for  the  liberties.'  But  the 
sherifl'is  not  bound  to  ascertain  the  libertiesof  the  jail ;  he  is  only  required 
to  let  the  prisoner  on  execution,  go  at  large  within  the  limits  estab- 
lished. It  is  the  duty  of  the  j>risoner  to  keep  in  }»laces  clearly  defined 
and  within  the  limits.* 

.5  571.  The  liberties  of  the  jail  are  considered  merely  an  extension 
of  the  prison  walls,  and  the  going  at  large  of  any  i)risoner  who  shall 
have  executed  such  bond,  or  of  any  prisoner  who  would  be  entitled  to 
the  liberties  of  anv  jail  ujton  executing  such  bond,  within  the  limits  of 
the  liberties  of  the  jail  of  the  county  in  which  he  shall  be  in  custody, 
shall  not  be  deemed  an  escape  of  such  prisoner  ;  but  in  case  any  such 
prisoner  shall  go  At  large  without  the  liberties  of  such  county,  without 
the  assent  of  the  party  at  whose  suit  such  prisoner  shall  be  in  custody, 
the  same  shall  be  deeuie(l  an  escai)e,  and  fi>rfeiture  of  the  bond  so 
executed  ;  and  the  sheritf  in  whose  custody  such  prisoner  shall  have 
been,  shall  have  the  same  authority  to  pursue  and  retake  such  prisoner, 
tis  if  such  escai)e  had  been  made  from  the  jail.  And  the  retaking  the 
prisoner,  and  his  giving  a  new  bond,  does  not  take  away  the  sherilf's 
right  of  action  against  the  sureties  upon  the  first  bond,  in  consequence 
of  his  havincr  been  sued  for  an  escape.  But  it  is  a  good  defence  to  a 
suit  UjKjn  the  bond,  that  llw  pri'^oner  was  retaken,  or  voluntarily 
returned  before  suit.* 

^  575.  The  sheriffmay  allow  the  prisoner  the  limits  without  l)ond, 
at  his  own  ri.sk,  if  he  will,  and  if  the  prisoner  escapes,  his  right  of 
recaption  remains  in  full  force  ;  and  a  voluntary  return  within  the 
limits  of  the  jail  before  suit  brought  is  equivalent  to  a  recajition,  and  a 
defence  to  an  action  for  an  escape.*     The  liberties  of  the  jail  being 

•  2R   ."    '■<   ''•■<^-4B.  > 'J  II   ><    t'f    <••'"  s  2  II   5?  .},v>,  (/).17,  4H. 

M'  llhtd.  li  .1  M   r.T'J,  V  17,48,  4lh  cd. 

»  1  ^  '  *"!  J  *  G  Jobu.  1:^1. 


KSCAPIvS.  245 

considered  merely  an  extension  of  the  walls  of  the  jail,  and  a  return 
within  the  liiiiit.s  before  suit  brought,  is  the  same  as  a  return  within  thy 
jail.' 

^  570.  When  the  jail  of  one  county  is  designated  for  the  u>c  <>f  any 
other  countv,  and  any  prisoners  have  been  admitted  to  the  liberties 
previous  to  such  designation,  they  shall,  notwithstanding  such  desig- 
nation,  be  entitled  to  remain  within  such  liberties;  and  prisoners  coining 
to  the  custody  of  the  sherilfof  such  latter  county,  after  such  designation, 
may  be  admitted  to  the  liberties  of  such  jail,  as  if  no  such  designation 
had  taken  place  ;  but  all  such  prisoners  may  be  removed  to  the  jail  so 
designated,  and  confined  therein  by  the  sherill"  to  whom  they  have 
given  bonds,  in  the  same  cases  and  in  the  same  manner  as  such  sherifl' 
might  by  law  confine  them  in  the  jail  of  his  own  county.  And  pris- 
oners confined  in  the  jail  so  designated,  or  removed  there,  who  are 
entitled  to  the  liberties  of  the  jail,  shall  be  admitted  to  them  by  the  sheriff 
of  the  countv  where  such  jail  is,  in  the  same  manner  and  in  the  same 
cases,  as  if  they  had  been  originally  arrested  by  such  sheriff,  on  process 
directed  to  him.  When  the  designation  is  revoked,  it  shall  be  the 
duty  of  the  sheriff  to  remove  the  prisoners  belonging  to  his  custody,  to 
his  projier  jail,  including  prisoners  who  may  have  been  admitted  to  the 
liberties  in  such  other  county,  and  who  shall  be  admitted  to  the  liberties 
of  the  jaii  to  which  they  shall  be  removed.' 


CHAPTER  XXXV. 

ESCAPES. 


1 


§  577.  An  escape  is  where  one  who  is  under  lawful  arrest,  evades 
such  arrest  and  restraint,  either  violently  or  privily,  or  is  suffered  to  go 
at  large  by  the  officer  having  him  in  custody,  even  for  the  shortest 
time,  before  delivery  by  due  course  of  law.^  Escapes  from  custoily 
under  civil  process  are  divided  into  voluntary  escapes  and  negligent 
escapes.  An  escape  is  voluntary  when  it  is  with  the  assent  of  the 
officer  having  the  prisoner  in  custody  ;  and  it  is  negligent  when  such 
escape  is  without  the  knowledge  or  assent  of  such  officer,  whether  it 
be  from  the  officer  on  the  arrest,  from  the  jail,  or  from  the  liberties 
thereof.*  The  distinction  between  a  voluntary  and  negligent  escape 
is  important,  as  will  be  seen  in  respect  to  the  liability  and  rights  of 
the  sheriff  suffering  such  escape,  in  civil  matters,  but  the  distinction 
does  not  prevail  in  criminal  cases.* 

1  10  John.  549.  '  0  Jolin.  .329.     1  Cow.  GOO.     s  C  Hill,  ZU. 

Allen,  214.  S.will,  440. 


2  2  R.  S.  429,  ^^>18,  19,  20.       *  10  John.  549 
Id.  67;],  <iv)18, 19, 20,  4th  ed.     4  John.  45. 
Ante,  ^215.  .  Sowcll,  145. 


2\G  RSCAri;s. 

^5  TmS.  Ii  has  alica.iy  k-cn  snii  tlial  any  slicrill',  jailer,  coroner, 
marshal,  or  constable,  who  shall  rorruplly  and  wilfully  omit  to  execute 
process  hy  which  any  pristmcr  on  crimiiKil  process  siiall  escape:  or 
."hall  wilfully  sulVcr  any  olVenjler  lawlully  committed  to  jjis  cust(»dy  to 
escnj^c  or  go  at  large  :  or  shall  receive  any  gratuity  or  reward,  or  any 
security  or  engagement  for  the  same,  to  procure,  assist,  connive  at,  or 
I>ermil  any  prisoner  in  his  custody,  on  any  civil  jiroccss,  or  on  any 
criminal  charge  or  conviction,  to  escape,  whether  such  escape  be 
attempted,  or  effected  <>r  not,  shall,  on  conviction,  be  punished  by 
imprisonment  in  a  countv  jail,  not  exceeding  itne  year,  or  by  fine  not 
exceeding  one  thousand  dollars,  or  by  both  such  fuie  and  imprisonment. 
And  in  addition  thereto,  such  olFicer  shall,  on  conviction,  forfeit  Ids 
ollice,  and  shall  forever  be  discpialifieii  to  hold  any  ollice  or  place  of 
trust,  honor  or  i)rofit,  under  the  laws  or  constitution  of  this  state.' 

vS  579.  There  is  a  material  distinction  between  the  liability  of  the 
sheritl'in  the  case  of  an  escape  of  one  confined  on  a  criminal  charge, 
and  one  who  is  in  custody  u])on  civil  process.  In  the  former  case,  he 
is  only  liable  to  the  foregoing  penalties  in  case  of  corrupt  and  wilful 
misconduct  on  his  part,  and  not  for  the  acts  or  defaults  of  his  de])uties 
or  jailers,  however  criminal  their  conduct  may  be,  unless  they  acted 
under  his  direction.  And  if  he  sulTeis  one  so  committed  to  go  at 
large  through  the  want  of  due  caution,  unless  such  want  of  caution 
amounts  to  gross  neglect  of  duly  ;  or  where  he  permits  one  to  go  at 
large  under  a  misapprehension  of  the  law  or  the  facts,  or  where  he 
sulTers  him  to  be  discharged  on  bail  by  an  ollicer  who  has  no  right  to 
let  to  bail  in  lhe1»arlicular  case,  he  will  be  excused.  But  in  all  such 
cases  it  will  be  the  duty  of  the  sherifl'to  retake  such  prisoner  wherever 
he  can  find  him,  and  re<'<»mmit  him  to  the  jail  from  whence  he  escaped 
or  was  sulfered  to  go  at  large.  Wiien  the  prisoner  is  confined  uj>on 
civil  process,  however,  the  sherifl'  is  not  only  subject  to  the  foregoing 
{K?nalties  in  case  of  wilfully  and  corruptly  allowing  the  j)rison'br  to 
es<-ape,  but  he  is  also  liable  to  an  action  at  the  suit  of  the  party 
aggrieved,  whether  the  escape  was  with  liis  assent,  or  without  his 
ki  ■  • ;  <»r  whether  the  escape  was  from  his  own  custody,  or  that 

<>•  ,  uty  or  his  jailer.     What  will  (institute  an  escai)e  in  a  civil 

caw,  and  what  not,  an«i  the   rigliN  ami    liability  of  the  sherifi'  in  such 
.  will  be  ri  iictly  pointed  out  in  the  following  pages. 

,\  .»i(>.   .Ml   ;  >  conniiitted    to  any  jail  u]ton  process   for  c(»n- 

temj't,  or  committed  for  misconduct  in  the  cases  prescribed  by  law, 

'  Ant*.  Ml 

2R  -^^       ■    "■' 
M  «l. 

2  R  M. 

Id.'  ,  401  cd 


ESCAPRS.  247 

shall  be  actually  conliiied  and  detained  within  such  jail,  until  ihey  shall 
be  from  thence  discharged  by  due  course  of  law,  or  shall  be  removed 
to  some  other  jail  or  place  of  confinement,  in  the  cases  jirovided  by 
law;  and  if  any  shcriflor  keeper  of  a  jail  shall  permit  or  sufll-r  any 
prisoner  so  committed  to  such  jail,  to  go  or  be  at  large  out  of  his 
prison,  except  by  virtue  of  some  writ  of  habeas  corpus,  or  rule  of 
court,  or  in  such  other  cases  as  may  be  provided  by  law,  be  shall  be 
liable  to  the  party  aggrieved,  for  his  datnages  sustained  thereby,  and 
shall  be  deemed  guilty  of  a  misdemeanor.'  And  in  the  case  of  an 
insolvent  debtor,  whore  one  refuses  to  answer  all  lawful  questic^ns  put 
U)  him,  or  shall  refuse  to  sign  the  examination,  and  is  committed  therefor, 
any  sherilT  or  jailer  wilfully  suHering  any  person  so  committed,  to 
escape,  shall  be  liable  to  an  indictment  for  a  misdemeanor,  and  on 
conviction  thereof,  in  addition  to  any  other  punishment  the  court  may 
inflict,  shall  forfeit  to  the  trustees  a  sum  ecpial  to  the  aiimunt  of  debts 
due  to  the  creditors  of  such  debtor,  not  exceeding  two  thousand  five 
hundred  dollars.'*  Where  one  is  committed  lor  contempt,  it  is  an 
escape,  if  instead  of  confining  him  in  the  jail,  the  sheriflT  suflurs  him  to 
occupy  or  remain  in  any  other  part  of  the  building  than  that  in  which 
the  prisoners  are  confined  ;  as  where  he  allows  the  party  so  committed 
to  occupy  the  jailer's  sitting  room.^ 

^  581.  If  any  prisoner  committed  to  any  jail,  by  virtue  of  any  capias 
ad  respondendum,  or  other  mesne  process,  or  upon  surrender  in  exon- 
eration of  his  bail,  made  either  before  or  after  judgment  rendered,  shall 
go  or  be  at  large  without  the  limits  and  boundaries  of  the  liberties  of 
such  jail,  without  the  assent  of  the  party  at  whose  suit  such  prisoner 
shall  have  been  committed,  the  same  shall  be  deemed  an  escape  of  such 
prisoner,  and  the  sherifl' having  charge  of  such  jail  shall  be  answerable 
therefor  to  such  party,  in  an  action  of  trespass  on  the  case,  to  the 
extent  of  the  damages  sustained  by  him.^  But  the  party  can  recover 
no  more  in  such  action  than  he  has  lost  by  the  escape,  and  for  this 
purpose  the  sherifl!' may  show  the  pecuniary  character  of  the  prisoner, 
and  if  he  was  worth  nothing,  the  party  will  not  be  entitled  to  recover 
anything.' 

^  582.  If  any  prisoner,  committed  to  any  jail,  in  execution  in  a  civil 
action,  including  actions  for  penalties,  shall  go  or  be  at  large  without 
the  boundaries  of  the  liberties  of  such  jail,  without  the  assent  of  the 
party  at  whose  suit  such  prisoner  was  committed,  (and  the  assent  of 

«  Ante,  ^256.  3  lO  P.iitjo,  606.  s  i  John.  216 

2  R.  S.  437,  ^61.  Ante,  ^^256.                               7     "     165. 

Id.  681,  ^81,  4th  ed.  <  2  R.  S.  437,  ^62.                        2  John.  C.i.  205 

»  Ante,  ^252.  Id.  681,  ^82,  4th  ed.                 17  Wend.  543 

2  R.  S.  43,  ^§12-16. 

Id.  222,  ^<)14-18,  4th  cd. 


248  KSCAPics. 

his  attorney  will  not  bo  sutFicieiit,  unless  the  <lebt  has  been  .'irtiially 
paid,')  ibe  same  shall  be  deemed  an  escape  of  such  prisoner,  and  tlio 
sberilV  haviiii;  rbnrije  of  surji  j:»il,  shall  be  answerable  to  such  party 
for  the  debt,  damatjes  or  sum  of  ujoncy  for  which  such  prisoner  was 
committed,  to  be  recovered  by  an  action  of  debt.' 

^  r>s:i.  Arreslinj?  one  and  leavin*^  him  in  the  cuslc»ily  of  unotlur. 
not  an  ollioer,  is  an  escaj)e,  as  such  person  has  no  authority  to  detain 
him.*  And  the  sending  a  |>crson  in  custody  on  mesne  process,  to  give 
evitlence  at  an  exuniner  s  court,  even  thoutjh  in  tho  custody  of  the 
jailer,  an!  'b<»  i.'  i.o  nf  holding  the  court  is  in  the  same  county,  is  an 
escape.* 

<5  S'*!.  It  is  an  escape  whore  the  shorilV  holds  one  on  final  process, 
if  he  sutlers  him  to  be  taken  from  his  custody,  upon  the  warrant  of 
a  justice,  upon  a  criminal  charge.  His  j)rior  possession  of  the  prisoner 
upon  the  civil  process,  is  superior  to  llfat  of  any  sul)sequent  criminal 
process,  and  if  he  suflers  him  to  be  so  taken  from  his  custodv,  he  will 
be  liable  therefor.^ 

^  5H5,  Where  one  is  on  the  liberties  of  the  jail,  the  going  beyond  the 
line  thereof,  knowingly  and  voluntarily,  even  for  the  j)urpose  of  avoiding 
a  snow  bank,  is  an  escape  for  which  the  sherilFis  liable.  And  so  where 
the  liberties  were  not  well  defined,  and  the  prisoner  went  beyond  them, 
into  a  building  which  was  supi)osed  to  be  within  the  limits,  and  staid 
an  hour,  it  has  been  held  to  be  an  escape."  Where  one  is  allowed  the 
limits,  and  is  afterwards  committed  to  close  confinement  on  a  criminal 
r'  -  -  -ind  breaks  the  jail  and  escapes,  the  sherifT  will  be  liable  for  the 
ut  not  the  sureties  to  the  bond.^ 

^  5N«  The  plaintifi*'s  attorney,  as  such,  has  no  authority  to  author- 
ize the  sheriff  to  permit  a  defendant  in  his  custody  on  final  |)rocess,  to 
go  at  large  without  payment  of  the  execution,  and  if  the  sheritF  does 
permit  him  to  go  at  largo  by  consent  of  the  attorney,  knowing  that  the 
'    '  t  is  not  satisfied,  as  where   l)y  direction  of  tlie  attorney  he 

..in  to  go  to  seek  for  the  means  of  settling  the  execution,  it  will 
be  an  escape.*  IJul  the  plaintiff's  attorney  of  record,  is  by  his  general 
!  authorized  to  acknowledge  satisfaction  of  a  judgment  obtained 

i  ,  I-  such  attorney,  al  any  tinje  williin  two  years  after  the  filing 

offuch  rccJord,  in  the  same  manner  and  with  the  like  effect  as  if  made 
1  ■'  '       -elf.     And  when   such   attorney  shall   have  acknowl- 

'    ^/  !i,  an<l  the  same  is  filed,  and  the  slieritf  has  no  knowl- 

edge that  the  authority  of  such  attorney  has  been  revoked  before  such 

•  6  John.  M  =  l<  John.  a2fl.                        «  G  J-.liM.  68. 

8    ''     aOfi.  ♦  .S.W.11,  .M.3.                                s    "     866. 

10  "     220.  5  It  H..W.  I»r.  R.  93.                       10  "     220. 

t  2  r.    "    ■  "  "'  '                     •  U  John.  hi). 

M  h  ••'              '3  Cow.  128. 


ESCAPICS.  249 

acknowledgment,  it  will  be  a  fiood  deftmce  to  an  action  for  an  escajK*. 
wlicro  niir  is  discharged  or  leaves  the  limits  after  su«',h  satisfaction 
jiicco  has  hcen  tiled  and  entered  U|)on  the  docket.'  Where  a  third 
person  directs  the  dischar^'e  of  a  j)arty  from  arrest,  his  authority  to  do 
so  must  he  clear  an;!  explicit.''  Where  a  judgment  is  for  costs  alone, 
the  att<»rn('y  has  a  lien  thei-eon,  and  the  costs  equitably  belong  to  him, 
and  if  the  execution  shows  upon  its  face  the  fact  that  such  judgment  is 
for  costs  only,  it  will  be  notice  to  the  sherifF;  and  the  f)arty  in  whose 
name  the  judgment  is  rendered  cannot  give  to  the  defendant  authoritv 
to  leave  the  limits,  and  if  he  does  so,  the  sherilV  will  be  liable  for  an 
escape.'  In  an  action  for  a  penalty,  where  one-half  thereof  goes  to  the 
informer,  the  plaintiff  cannot  discharge  the  judgment  as  to  the  people's 
moiety  of  the  penalty,  w'ithout  payment,  and  if,  in  such  action,  the 
defendant  has  been  arrested,  and  is  ordered  to  be  discharged  by  the 
plaintiff  without  satisfaction,  the  officer  will  be  liable  for  an  escape  if 
he  suffers  him  to  go.^ 

^  587.  If  a  prisoner  is  discharged  from  arrest  in  any  civil  cause,  by 
a  court  or  officer,  without  authority,  it  is  an  escape,  for  which  the 
sheriff  is  liable.*  Thus  a  justice  of  the  peace  has  no  authority  to  dis- 
charge a  prisoner  on  execution  issued  by  him,*without  si)ecial  power 
for  that  purpose  from  the  plaintiff  in  the  suit.  And  if  a  constable  who 
has  a  defendant  on  execution,  discharges  him  by  order  of  the  justice, 
who  has  no  authority  from  the  plaintiff,  the  constable  will  be  liable  for 
an  escape.*  But  if  the  court  has  jurisdiction,  it  is  immaterial  if  the 
proceedings  are  irregular,  unless  the  officer  is  a  particij)ator  in  the 
irregularity.^  Thus  the  discharge  of  a  prisoner  on  habeas  corpus  by 
a  supreme  court  commissioner,  though  erroneous,  was  held  a  complete 
bar  to  an  action  for  an  escape.*  But  where  by  statute,  a  countv  judf^e 
can  only  discharge  an  insolvent  in  court,  the  discharge  of  one  out  of 
term,  is  void  for  want  of  jurisdiction,  and  if  the  prisoner  is  discharged 
in  pursuance  thereof,  it  will  be  an  escape.  And  the  discharge  of  one 
alleged  to  lie  a  lunatic,  under  the  statute  organizing  the  state  lunatic 
asylum,  is  void,  unless  the  order  directs  him  to  be  sent  to  the  asylum.* 
A  writ  of  error  only  stays  proceedings,  it  does  not  authorize  the  dis- 
charge of  a  prisoner  in  execution,  and  if  the  sheriff  does  discharge 
him,  it  will  be  an  escape.'"  A  prisoner  arrested  by  virtue  of  an 
indorsed  warrant,  for  an  offence  punishable  in  the  state  prison,  cannot 
be  let  to  bail  in  the  county  where  the  arrest  is  made,  and  if  he  is  so  let 
to  bail,  it  is  equivalent  to  suffering  a  voluntary  escape,  and  the  officer 

1  2  R.  S.  362,  <^2i.  5  5  John.  115.  "8  John.  472. 

Id.  609,  ()'22,  4th  cd.  9  John.  146.  8  3  Barb.  37. 

2  6  John.  53.  15"     152.  »  5  B.irb.  273. 

3  4  Barb.  48.  8  Wend.  545.  4  Com.  300. 

*  11  John.  472.  «  9  John.  146.  10  21  Wend.  287. 

33 


250  i:scAPi:s. 

mav  retake  him  muier  the  Wiiriaiil.    The  dislinflioa  belweeii  vuhintarv 
and  nefjhireiil  csrapes  docs  imt  exist  in  criminal  cases.' 

^  588.  ir.  whde  the  defendanl  is  in  custody  of  the  sherilV.  another 
writ  is  dehvercd  to  him  apainsl  the  same  parly,  the  defendant  is  hy 
such  ileiivery  in  custtwly  as  well  upon  such  .»;econd  writ  as  upon  the 
one  on  which  he  was  arrested,  and  if  he  is  disclmr;^ed  upon  it,  he  must 
he  detained  on  the  second  writ,  or  it  will  be  an  escape.  If  the  first 
arrest  was  vi»id  however,  he  cannot  be  detained  ui)on  other  process  at 
the  suit  of  the  same  plaintilV.  But  if  such  first  arrest  is  only  irregular, 
the  tiefendant  is  not  privileged  from  beini^  detained  at  the  suit  of 
another  party,  unless  there  be  some  collusion." 

<5  r)8t>.  Ou  mesne  |)roce-^s,  the  sheritF  may  i»crmit  the  defendant  to 
go  at  large,  provided  that  he  has  him  at  the  return  day  of  the  writ,  but 
he  cannot  allow  him  to  go  at  large  after  such  return  day.'  If  he  does 
not  have  him  at  the  return  day  he  will  be  liable  for  an  escape  ;  as  where 
a  constable  arrested  a  defendiuU  and  allowed  him  to  go  at  large  until 
the  return  day,  who  was  iti  the  meantime  arrested  on  criminal  jirocess, 
and  could  not  be  retaken,  the  constable  was  held  liable  for  an  escai)e.* 

(3  •')90.  Hut  it  is  otherwise  on  final  process,  for  if  the  sherift'  allows 
the  defendanl  to  go  at'large,  even  for  the  shortest  time,  he  cannot  be 
retaken.*  And  if  the  sheriff  does  retake  him,  after  allowing  him  to  go 
at  large,  he  will  be  liable  for  false  imi)risonment.'  \or  cm  the  sheriff 
in  such  case  retake  him,  even  if  he  surrenders  himself,  unless  the 
phiintiff  does  some  act  showing  his  election  to  hold  him  on  the  old 
execution.^  And  if  in  such  case  he  take  a  bond  frojn  him  for  the 
liberties  of  the  jail,  it  will  be  void."  Where  an  execution  is  issued  out 
of  a  justice's  court,  against  the  body  of  the  defendant,  although  the 
constable  has  until  the  return  day  to  make  the  arrest,  yet  if  he  arrests 
him  before,  it  will  be  an  escape  if  he  sutlers  liim  to  go  at  large,  and  it 
will  not  be  excused  by  having  him  in  custody  at  the  return  day.* 

5  '»U1.  Where  the  defendant  escapes  without  ihe  knowledge  or  assent 
of  the  sheritr,  whether  it  be  from  the  ollicer  on  arrest,  or  from  the  jail 
or  the  liberties,  the  sheritl'  may,  on  fresh  pursuit,  retake  the  prisoner 
wherever  he  can  find  him,  whether  within  the  limits  of  his  county  or 
beyond  it,  and  he  may  break  oi)en  doors,  on  demand  and  refusal,  neccs- 
•ary  to  come  at  him,  and  he  may  be  retaken  at  .any  time,  whether  on 
8unday  or  any  other  day.  llis  bail  have  the  same  i»owrr  lo  retake 
him  an  bail  in  criminal  cases. '" 

21  ril»2.   If  thf  escape  was  without  the  consent  of  ihc  sheriff  or  uther 

I  C  mil,  344  «  0  John.  6'i.  "  '2  .Inlm  Ci.  .1. 

•  WAUxm,  til.  *  Ci  Hill,  :(I4.  ]r,  ,]uhu.  •SiC,. 

•  6  John.  18'i.                                I r>  John.  250.  1  Wrud   .'{.ih. 

6  "        62.                                4         •'     46.  »  ir,  John   'SW. 
10  Wcod.  614.  •  Hcwdl,  441.  •  la  John.  WKj. 

'o  AnU-,  ^ia2. 


■     KSCAPKS.  251 

ofTicer,  it  will  he  a  good  defence  to  any  action  therefor,  that  hcfore  the 
commencement  of  such  suit  such  prisoner  voluntarily  returned  to  the  jail 
from  which  he  had  escaped,  or  to  the  liherties  thereof;  or  thnt  surh 
defend.int  rcfook  such  prisoner  and  had  hirn  in  the  jail  from  which  he 
escaped,  or  within  the  liberties  thereof.'  Hut  a  vohmtnry  escape  will 
not  he  purged  by  such  return,  or  retaking,  without  atlirmance  by  the 
plaintilT.- 

^5  ''i>I<.  All  irregularity  in  the  process  whirh  does  not  render  it  void, 
but  voidable  only,  will  not  excuse  an  escape.'  Thus  a  wrong  teste  in 
the  name  of  the  chief  justice,  has  been  held  not  such  an  irregularity 
as  would  excuse  the  sheriff  lor  not  executing  such  process.*  The 
sherifl'  can  never  allege  error  either  in  the  judgment  or  process,  as  an 
excuse  for  an  escape.'  Nor  can  he  defend  upon  the  ground  that  the 
jilaintilT  was  not  entitled  to  the  original  judgment.'  A  forged  satis- 
faction i)iece,  entered  on  the  docket,  but  not  entered  on  the  record, 
was  held  not  to  be  a  justification  of  the  sheriff",  for  an  escape  where 
the  sherifV  did  no  act  under  such  forged  satisfaction  piece,  but  the 
defendant  being  on  the  limits,  left  of  his  own  accord.^  Nor  is  the 
death  of  the  defendant  before  action  an  excuse.'  Nor  will  the  fact 
that  the  escaj)e  was  without  the  knowledge  or  fault  of  either  the  sheriff 
or  jailer  excuse  him.  The  fact  that  the  prisoner  has  been  arrested  and 
committed  on  a  previous  attachment  for  the  same  cause,  and  discharged 
from  custody  with  the  assent  of  the  plaintiff,  is  not  an  excuse  for  an 
escape.'  The  assent  of  the  plaintiff,  subsequent  to  an  escape,  to  the 
defendant's  leaving  the  limits,  will  not  excuse  the  escape.'" 

^  594.  It  has  been  held  that  going  two  or  three  miles  out  of  the 
direct  road  to  the  jail,  in  order  that  the  prisoner  might  obtain  the 
means  of  satisfying  the  execution  ;  or  going  with  him  that  distance  to 
his  home  in  order  that  he  might  get  his  necessary  wearing  apparel, 
and  see  his  wife  before  he  went  to  jail,  was  not  an  escape,  it  being  no 
more  than  a  reasonable  indulgence  from  laudable  and  compassionate 
motives."  And  where  one  is  arrested  on  a  civil  or  criminal  charge, 
the  officer  may  carry  him  through  such  parts  of  any  other  county  as 
shall  be  in  the  ordinary  route  of  travel  from  the  place  of  the  arrest  to 
the  place  where  he  is  to  be  carried,  and  such  conveyance  shall  not  be 
deemed  an  escape.'*     The  removal  of  a  ])risoner  from  one  jail   to 

1  2  R  S.  437,  <fi4.  s  6  How.  Pr.  R.  73.                   "  10  John.  420. 

Id.  G82,  v>84,  4th  cd.  s  .3  Com.  331.                            '2  2  R.  S.  748,  <)i6. 

a  3  Com  331.  7  7  Wend.  35.                               Id.  931,  ^53, 4th  ed. 

3  Watson,  139.  8  4  How.  Pr.  R.  297.                    2  R.  S.  428,  %G,  7. 

M  Cow.  158.  9  8  Wend.  545.                               Id.  671,  ^^6,  7,  4th  ed. 

6  How.  Pr.  R.  73.  '»  10  John.  181. 

4  Seld.  Hutchinson  v.  7  Cow.  275. 
Brand. 

8  Cow.  192,  13  John.  378. 


'2T^2  I-.SCArKS. 

anoiiiiM  in  tlie  same  conniv,  or  \o  \ho  jail  of  anollicr  county,  in  the 
oases  where  the  shi-riH*  may  so  remove  any  prisoner  ;  or  the  removal 
i>f  a  j)risoner  from  the  jail  in  rase  of  a  fire  therein,  or  of  any  pesti- 
lence or  contaiiioiis  disease  in  the  jail  or  vicinity,  as  presf-rihed  in  the 
statute.  5hall  n»U  be  deemed  an  eseape.'  And  it  will  not  be  deenied 
an  esca|M»  if  the  jail  is  broken  open  and  the  prisoners  liberated,  by  the 
publie  and  foreign  enemies,  or  where  the  esca]>e  is  in  consetpience  of 
the  net  of  tio«l,  or  of  a  fne  in  the  jail  ;  but  it  will  be  otherwise  if  the 
jail  is  broken  open  by  a  mob.'  An  involuntary  dej):irture  will  not  be 
an  escape,  as  in  case  of  sudden  sickness  the  prisoner  is  removed 
beyond  the  liberties  (»f  the  jail  without  any  a<;eney  or  directions  of  his 
own.  Where  one  is  on  the  limits  and  another  execution  is  delivered 
to  the  shcritr  and  the  defendant  leaves  the  limits,  the  fact  of  the  deliv- 
ery of  the  last  execution  is  not  o(  itself  such  an  arrest  as  to  place  the 
defendant  in  custody  on  such  last  execution,  and  the  shcrifl'  will  not 
be  liable  for  an  escape.'  And  if  the  first  arrest  of  one  is  void,  the 
prisoner  cannot  be  detained  by  subsequent  process  at  the  suit  of  the 
same  plaintill*,  and  if  he  escajjcs  the  sheriH"  will  not  be  liable.*  Where 
the  defendant  was  seen  ofl'  the  limits  on  Sunday  by  the  creditor,  who 
held  out  inducements  to  him  to  remain  oil'  until  ^Monday,  with  the 
intent  to  fix  the  slierilT  with  the  (>scape,  it  was  held  that  the  device  of 
the  creditor  was  fraudulent  and  that  he  was  not  entitled  to  sustain  an 
action  ap;ainst  the  sheriff  for  the  escape.'  So  if  a  creditor  by  his  auent 
or  person  acting  in  concert  with  the  ai^ent,  shall  by  artifice  or  fraud 
induce  the  debtor  to  escape,  the  sheriff  is  not  responsible.*  The  sheriff 
will  not  be  liable  for  an  escaj)e  if  the  execution  or  judi^ment  is  void. 

^  595.  Any  agreement  made  with  a  sheriff,  by  which  a  ]>arty  under 
arrest  is  permitted  to  go  at  large  upon  any  terins  other  than  those 
|»reseribcd  by  the  statute  is  void  ;  and  so  ia  any  agreement  taken  by 
him  from  any  party  in  custody,  intended  as  an  indemnity  to  the  sheriff, 
for  a  breach  of  his  duty.^  If  the  sheriff  take  a  promissory  note  in 
satisfaction  in  an  execution,  and  discharge  the  defendant  without 
authority  from  the  plaintiff,  it  is  void  as  between  the  sheriff  and  the 
maker  of  the  note,  and  such  sheriff  is  liable  for  an  escape.*  Where  an 
«»fllcer  having  one  on  execution,  another  promised  that  if  he  would 
relenjie  him.  such  person  would  pay  the  amount  of  the  exe<'ution  if  the 
defendant  failed  to  redeliver  himself  to  the  ollicer,  and  the  latter 
released  him  acconlingly,  it  was  held  that  this  was  a  voluntary  escape 
and  that  the  officer  could  maintain  no  actif»n  against  the  j)erson  prf>m- 
ising,  on  the  non-performance  of  his  agreement.*     lU-ceiving  anything 

'  Anlr.  </,2\l>,  21C.  *  W.ii«on,  '.>\.  t  \  Com.  :W,. 

»  WnUoii    140  »  10  Wend.  866.  1.1  John.  860. 

2  Blip   N.  P    610.  •  2  iKiiio,  646.  •  R  Cow.  466. 

*  8  John.  879.  >  13  Jobn.  366.    3  Com.  831. 


ESCAPES.  253 

but  money,  even  a  diiift,  in  payment  of  the  execution,  ami  allowing 
the  defendant  to  go  at  large,  is  an  escape.' 

(5  TjOO.  Where  an  escape  has  occurred,  the  commencement  of  an 
action  against  the  sherifi' therefor,  is  an  election  to  consider  the  defendant 
out  of  custody,  and  such  defendant  ceases  to  he  in  judgment  of  l:i\v  in 
the  custody  of  the  sherill",  until  again  charged  in  execution,  and  lie  may 
leave  tHe  jail  or  the  liberties  thereof  with  impunity,  and  another  action 
for  an  escape  will  not  lie.''  This,  however,  must  be  understood  to  be 
where  the  escape  was  voluntary,  for  if  it  was  negligent,  the  sherifl'may 
retake  the  prisoner  and  detain  him  until  he  is  indemnified  for  the  csca|)e.^ 
If  a  new  sherill' receives  a  prisoner  iVom  the  old  sherill,  he  is  bound  to 
keep  him,  notwithstanding  there  was  a  voluntary  escape  while  he  was  in 
the  custody  of  the  former  sheriff;  and  if  he  allows  him  to  go  at  large 
it  will  be  an  escape.  However,  if  the  plaintiff  sue  the  former  sheriff 
for  an  escape,  it  is  an  election  that  he  does  not  consider  the  defendant 
in  execution,  and  he  cannot  afterwards  sue  the  new  sheriff  for  an 
escape,  if  the  prisoner,  after  such  first  suit  goes  at  large.*  Where  an 
escape  occurred,  and  the  sheriff  went  out  of  office,  and  after  the  ai)point- 
ment  of  the  new  sheriff,  the  prisoner  applied  for  his  discharge  as  an 
insolvent,  and  was  opposed  by  the  creditor,  it  was  held  not  to  be  such 
an  election  to  hold  the  defendant,  as  to  bar  an  action  against  the  former 
sheriff  for  the  escape.® 

^  597.  If,  in  consequence  of  a  voluntary  escape,  the  sheriff  has  to 
pay  the  debt,  he  cannot  recover  the  same  of  the  defendant.^  But  it  is 
otherwise  of  a  negligent  escape,  and  though  fresh  pursuit  is  not  made, 
yet  if  the  plaintiff  has  brought  suit  for  the  escape,  the  sheriff  may  retake 
him  and  detain  him  until  he  is  satisfied  by  him  for  the  escape,  if  the 
plaintiff  recover  for  a  negligent  escape.'' 

^  508.  Where  the  sheriff  is  ordered  by  a  writ  of  habeas  corpus  to 
bring  up  the  body  of  a  prisoner  in  execution,  if  it  is  valid  on  its  face, 
though  irregularly  or  erroneously  allowed,  the  sheriff  will  be  protected 
in  his  obedience  to  it.^  But  it  is  his  duty  to  convey  the  prisoner  by 
the  shortest  and  most  convenient  route  to  the  court  or  officer  where 
the  writ  is  returnable.  And  if  he  goes  elsewhere  with  the  prisoner  to 
accommodate  him,  or  suffers  him  to  go  at  large  about  his  own  affairs, 
although  he  has  him  at  the  return  of  the  writ,  it  will  be  an  escape. 
And  so  where  a  habeas  corpus  issues  at  one  term  to  bring  up  a  prisoner 
who  is  in  execution  before  the  court  at  the  ensuing  term  thereof, 
if  the  sheriff  lets  him  go  at  large  in  the  meantime,  it  is  an  escape, 
although  he  appears  with  him  in  custody  at  the  return  of  the  writ.' 

»  Ante,  ^551.  *  4  John.  4G0.  8  5  John.  357. 

!  7  Wend.  4.54.  s  7  John.  477.  6  Cow.  176. 

111.1.467.  6  Graham's  Pr.  149.  9  10  Paige,  606. 

3  Watson,  150.  t  Watson,  150.  Sewell,  443. 


'^31       WRITS  OF  IIAHKAS  CORPrS  AND  CKRTIORARI. 

Where  llie  prisoner  is  so  hri>ii^ljl  up  on  liahcas  corpus,  and  llio  oll'icer 
before  whom  the  snme  is  roturnnhlc,  iiistend  of  cominittin*,'  the  j»risoner 
to  the  cuslodv  of  ihe  shtrill  juMidinL;  the  decision  of  the  habeas  corpus, 
directs  such  sheritV  to  let  him  ;:o  at  large,  it  will  not  excuse  the  shcrilV 
if  he  lets  him  go  at  large.  Init  he  will  be  liable  for  an  escape.'  Where 
one  in  prison  is  broughl  up  by  the  sheriff  on  habeas  corpus,  before  a 
judge  or  commissioner  who  is  at  a  distance  from  the  prison,  aid  such 
defendant  is  to  be  detained  only  a  short  lime,  so  that  it  would  be  inex- 
pedient to  be  at  the  troul)le  and  expense  of  transporting  him  back  to 
jail  for  safe  keeping,  until  the  decision  upon  the  habeas  corj)us,  it  will 
not  be  an  escape,  or  a  contemning  the  j)roccss  of  the  court  for  such 
sheritVto  detain  him  in  actual  custody  out  of  the  common  jail.  13ut  as 
the  prisoner  in  such  case  is  still  in  the  custody  of  the  sheriH',  under  the 
original  process  of  commitment,  as  well  as  under  the  order  ot  the 
judge,  it  is  an  escape  if  the  sherilV  voluntarily  sull'ers  him  to  go  at  large 
without  restraint.  The  writ  of  habeas  corj)Us  and  the  commitment  to 
the  sherilF,  who  brings  the  j»risoncr  uj)  until  the  cause  can  be  disposed 
of,  is  an  excuse  to  the  sherifFfor  not  having  the  prisoner  in  his  custody 
in  the  commctn  jail  in  the  meantime,  where  it  cannot  be  conveniently 
done.  But  such  commitment  to  him  is  no  dis<'harge  of  the  original 
arrest,  so  as  to  excuse  the  sherifl'for  permitting  him  to  escape  or  go  at 
large.* 

^  099.  An  action  against  the  sherilf  for  an  escape  must  be  brought 
within  one  year  after  the  escape  occurred.' 

(  II  Al'TKIl  XXXVI. 

wKiTri  or  ii.\i;i:.vs  courus  and  ci:uti<»u.vki. 

5  tiOO.  Every  person  committed,  detained,  confmed  or  restrained  of 
his  liberty,  within  this  state,  for  any  criminal  or  supjwsed  criminal 
matter,  or  under  any  j»retence  whatsoever,  njay  prosecute  a  writ  of 
habras  corpus  or  of  certiorari,  according  to  the  provisions  of  the 
statute,  to  incpiire  into  the  criusc  of  such  imprisonnient  or  restraint, 
except : 

1.  Persons  comnntled  or  detained  by  virtue  of  any  process  issued 
by  any  court  «»f  the  United  States,  or  any  judge  thereof,  in  cases  where 
such  courts  or  judges  have  exclusive  jurisdiction  under  the  l.ius  of  the 
United  Statis  ;  or  shall  have  accpiired  ex<'Iusivc  jurisdiction  by  the 
commencemcnl  of  suits  in  such  coints: 

tJ.  Pcr»Kjn«  committed  or  detained  by  virtue  of  the  linal  judgment 
or  decree  of  any  cofnj>etent  tribunal  of  civil  or  critiiin:il  jurisdiciion, 
or  by   virtue  of  any  rxecution  issued  u])oii  such  judgment  or  de<ree  ; 

'  10  Paige,  G06.  '  l'>  t'Ai"*-,  00*'..  i  Cotk,  <fii. 


WRITS  OF  IIAFJRAS  CORPUS  AND  CHRTIORARI.       ^55 

but  no  Older  of  (•(jiiiinilinuiit  lor  uiiy  ulle;j;ijd  roniemiti,  or  uj)on  pro- 
ceedin<j;.s  jis  forcontem|)t,  to  enforce  the  rights  or  remedies  of  any  |).'irty 
shall  be  deemed  ;i  judgment  or  decree  within  the  meaning  of  tlie 
statute  ;  nor  shall  any  attachment  or  other  process  issued  ujion  any  such 
order,  be  deemed  an  execution  within  the  statute.' 

g  ()()1.  Any  ofllccr  or  other  j)erson  refusing  to  deliver  a  copy  of  any 
order,  warrant,  process  or  other  authority,  by  which  he  shall  detain 
any  person,  to  any  one  who  shall  demand  such  copy,  and  tender  the 
fees  thereof,  shall  forfeit  two  hundred  dollars  to  the  person  so  detained.* 

^  (502.   Writs  of  habeas  corpus  and  certiorari  may  be  granted, 

1.  By  the  supreme  court,  during  its  sittings,  or  at  a  s]>ecial  term 
thereof:^ 

2.  During  any  term  or  vacation  of  the  su]ireme  court,  by  any  of  the 
justices  thereof,  or  l)y  any  ollicer  ruithorized  to  j)erform  the  duties  of  a 
justice  of  the  supreme  court  ;U.  t;li;unbt'rs,  being  or  residing  within  the 
county  where  the  prisoner  is  detained  ;  or  if  there  be  no  such  odicer 
within  such  county,  or  if  he  be  absent,  or  for  any  cause  be  inca|)able 
of  acting,  or  have  refused  to  grant  such  writ,  then  by  some  ollicer 
having  such  authority,  residing  in  an  adjoining  county.* 

§  (503.  When  the  writ  is  granted  by  the  supreme  court,  or  any 
justice  thereof,  where  the  prisoner  is  confined  in  a  county  other  than 
where  such  court  shall  then  be  held,  or  odicer  reside,  such  court  or 
oflicer  may  in  their  discretion  make  such  writ  returnable  before  some 
officer  authorized  to  issue  such  writ,  in  the  county  where  the  prisoner 
may  be  confined.^  After  the  court  of  oyer  and  terminer  shall  commence 
its  sittings  in  any  county,  no  prisoner  detained  in  the  common  jail  of 
any  such  county  upon  any  criminal  charge,  shall  be  removed  therefrom 
by  any  writ  of  habeas  corpus,  unless  such  writ  shall  be  made  returnable 
before  it.* 

^  G04.  By  the  wnl  of  habeas  corpus,  the  sherilT,  or  other  officer,  or 
person  in  whose  custody  or  restraint  the  prisoner  may  be,  is  com- 
manded, that  at  the  time  and  place  therein  mentioned  he  have  the  said 
prisoner  with  the  time  and  cause  of  such  imprisonment  and  detention.'' 
And  by  the  writ  of  certiorari,  such  ollicer  or  person  having  any  such 
prisoner  in  custody,  is  commanded  that  he  certify  fully  and  at  large, 
to  the  court  or  officer  issuing  the  writ,  at  a  time  and  place  therein 
mentioned,  the  day  and  cause  of  the  imprisonment  of  the  prisoner.^ 
Writs  of  habeas  corpus  and  certiorari  or  discharge  shall  be  under  the 
seal  of  the  court  by  which  they  are  awarded.  If  awarded  by  any 
officer  out  of  court,  they  shall  be  under  the  seal  of  the  court  before 

«  2  R.  S.  563,  v>^21,  22.  3  12  Wond.  229.  «  2  R.  S.  944,  ^27,  4th  c± 

Id.  797,  %3b,  36,  4th  ed.  <  2  U.  S.  663,  ^23.  t  2  R.  S.  564,  ^27. 
6  Barb.  366.                              Id.  797,  <)S~,  4th  ed.  Id.  798,  <>41,  4ih  ed. 

2  2  R.  S.  573,  ^72.  3  2  R.  S.  799,  <>43,  4th  ed.  8  o  R.  S.  564,  ^28. 
Id.  805,  ^88,  4th  ed.                Laws  1837,  ch.  340,  <^1.  Id.  798,  ^42, 4th  ed. 


25G       WIUTS  OF  HABEAS  CORPl'S  AND  CF.RTIORARl. 

whirlj  the  writ  is  made  reliinKil»|p  ;  or  if  il  In*  made  rtjlurnable  before 
some  body,  other  thnij  n  court  of  record,  or  before  an  ollicer  out  of 
court,  it  shall  be  under  the  seal  of  the  supremo  court.'  Kvery  such 
writ  may  be  made  returnable  at  a  day  certain,  or  furlluvitb,  as  the  case 
may  recjuire  :'  an<l  shall  be  indorsed  with  a  certificate  that  the  same  has 
l»een  aljowcil.  and  with  the  date  of  such  allowance  ;  which  indorsement, 
if  the  writ  be  awarded  by  a  court,  shall  bo  signed  by  the  chief  justice, 
or  other  presiding  oJbcer  of  such  court  ;  if  it  be  awarded  by  any 
officer  out  of  court,  the  indorsement  shall  be  si'jned  by  such  olFicer.' 

3  GOr».  Such  writs  of  habeas  corpus  or  certiorari,  shall  not  be  diso- 
beyed for  any  defect  of  form.     They  shall  be  sulficient, 

1.  If  the  person,  havinir  the  custody  of  the  j^risoiier,  be  designated 
either  by  bis  name  of  oflice,  if  he  have  any  ;  or  by  his  own  nanje  ;  or 
if  both  such  names  be  unknown  or  uncertain,  he  may  be  described  by 
an  assumed  name  or  appellation  ;  and  any  one  who  may  be  served 
with  the  writ  shall  be  deemed  the  person  to  whom  it  is  directed, 
althouirh  it  mav  be  directed  to  him  by  a  wrong  name  or  description, 
or  to  another  person  : 

'2.  If  the  person  who  is  directed  to  be  produced  be  designated  by 
name  ;  or  if  his  name  be  uncertain  or  unknown,  he  may  be  described 
in  any  other  way  so  as  to  designate  the  person  intended/ 

^  noo.  Writs  of  habeas  corpus  can  only  be  served  by  an  elector  of 
some  county  within  this  state  ;  and  the  service  thereof  shall  not  be 
deemed  complete  unless  the  party  serving  the  same  shall  tender  to  the 
person  in  whose  custody  the  prisoner  may  be,  if  such  person  be  a 
sheriff,  coroner,  constable  or  marshal,  the  fees  allowed  by  law  for 
bringing  up  such  prisoner ;  nr»r  imless  he  shall  also  give  bond  to  such 
sheriff,  coroner,  constable  or  marshal,  as  the  case  may  be,  in  a  penalty 
double  the  amount  of  the  sum  for  which  such  prisoner  may  be  detained, 
if  he  be  detained  for  any  specific  sum  of  money,  and  if  not,  then  in  the 
penalty  of  one  thousand  dollars,  cunditioned  that  such  person  will  pay 
the  charges  of  carrying  back  such  prisoner,  if  he  shall  l)e  remanded, 
and  that  such  prisoner  will  not  escape  by  the  way,  either  in  going  to 
or  returning  from  the  place  to  which  he  is  to  be  taken.  Hut  such 
payment  of  fees,  or  such  bond  shall  not  be  necessary  where  the  writ  is 
sued  out  by  the  attorney  general,  or  by  any  district  attorney."  The 
officer  granting  a  writ  directed  to  any  other  j>erson  than  a  sheriff, 
coroner,  constable  or  marshal,  may  in  his  discretion,  require  as  a  duty 
to  be  jK-rformed,  in  order  to  render  the  service  thereof  effeeturd.  that 
the  cbartres  of  bringing  such  prisoner,  shall  be  paid  by  the  petitioner  : 

I  2  n   "   "  1     "  1  »  2  R  H.  r,7 1,  ()'i.  «  G  R.  8.  Mr,,  {/29. 
M                     1;Im<|.                  M  wm',,  tyjl,  4th  c«1.  li\.lW,  <y\i,  nhal. 

•2i:  .  ,~'K  •ith  «*'l.  »  -  R   H  hit,  (>7«').  8  :,•  R  S.  674,  <)()1H,  7;». 

Uwa  1047,  cb.  280,  ^27.         Id.  WW,  ^W,  4lh  cd.  Id.  8U6,  ^^91,  W>,  4lb  ed. 


WRITS  OF  IIADEAS  CORPUS  AND  CERTIORARI.      257 

and  in  snrh  case  he  shall  in  the  aMowance  of  the  writ,  s|K?riry  the 
amount  of  such  charges  so  to  he  i)aiil,  which  shall  not  exreed  the  fees 
allowed  hy  luw  to  sherifl's  for  similar  services.' 

g  (507.  Every  writ  of  habeas  corpus  or  certiorari,  may  be  served  by 
delivering  the  same  to  the  person  to  whom  it  is  directed  ;  if  he  cannot 
be  found,  it  may  be  served  by  being  left  at  the  jail  or  other  place  in 
which  the  prisoner  may  be  confined,  with  any  under  oflicer,  or  other 
person  of  jiroper  ago,  having  charge  for  the  time,  of  such  jirisoner  : 
and  if  the  person  on  whoui  it  ought  to  be  served,  conceal  himself,  or 
refuse  admittance  to  the  party  attempting  to  serve  the  same,  it  maybe 
served  by  aflixing  the  same  in  some  conspicuous  place,  on  the  outside. 
either  of  his  dwelling  house,  or  of  the  place  where  the  parlv  is 
confined.'^ 

g  008.  It  shall  bo  the  duty  of  every  sheriff,  coroner,  constable  or 
marshal,  upon  whom  a  writ  of  habeas  corpus  shall  be  served,  whether 
such  writ  be  dijectcd  to  hm  or  not,  upon  payment  or  tender  of  the 
charges  allowed  i)y  law,  and  the  dtdivery  or  tender  of  the  bond 
mentioned,  to  obey  and  return  such  writ  according  to  the  exi^encv 
thereof;  and  it  shall  be  the  duty  of  every  other  person  upon  whom 
such  writ  shall  he  served,  having  the  custody  of  the  individual  for 
whose  benefit  the  writ  shall  be  issued,  to  obey  and  execute  such  writ, 
according  to  the  command  thereof,  without  requiring  any  bond,  or  the 
payment  of  any  charges,  unless  the  payment  of  such  charges  shall  have 
been  required  by  the  oflicer  issuing  such  writ  ;^  and  he  shall  bring  the 
body  of  the  person  in  his  custody,  according  to  the  command  of  sucli 
writ,  except  in  the  case  of  the  sickness  of  such  person,  as  hereinafter 
mentioned.^  Ifthewritbc  returnable  at  a  certain  day,  such  return 
shall  be  made,  and  such  prisoner  shall  be  produced  at  the  time  and 
place  specified  therein  :  if  it  be  returnable  forthwith,  and  the  place  be 
within  twenty  miles  of  the  place  of  service,  such  return  shall  be  made, 
and  such  prisoner  shall  be  produced,  within  twenty-four  hours  ;  and 
the  like  time  shall  be  allowed  for  every  additional  twenty  miles.'  The 
sheriff  must  convey  the  person  to  the  court  or  ofTicer  bv  the  shortest 
and  most  convenient  route,  and  if  he  suffers  him  to  go  elsewhere  about 
his  own  business,  though  he  have  him  at  the  return  of  the  writ,  it  will 
be  an  escape.  And  if  a  habeas  corpus  issue  in  one  term  to  the  sherifi' 
to  bring  up  a  prisoner  in  his  custody  in  execution  on  the  ensuinf^  term, 
if  he  let  him  go  at  large  in  the  meantime,  it  is  an  escape.*  And  he 
must  be  detained  in  the  custody  of  the  oflicer  durinc:  the  pendency  of 
the  writ,  or  until  he  is  committed   to  the  care  of  some  other  person 

'  2  R.  S.  676,  $84.  3  2  R.  S.  575,  $82.  s  o  R.  S.  575,  $55. 

Id.  807,  $100,  4th  cd.  Id.  807,  $98,  4th  ed.  Id.  807  $101   4th  cd 

2  2  R.  S.  574,  $$80,  81.  <  2  R.  S.  5GG,  $33.  s  Sowell  443 

Id.  807,  $$90,  97,  4th  cd.  Id.  800,  $48,  4th  ed.  Watson  139. 

34 


258       WIIITS  OF  IIABRAS  COIIPUS  AND  CERTIORARI. 

by  the  ortier  of  the  court  or  ofllcer  heforo  whom  the  writ  is  return- 
able.' Aiui  if  he  is  sull'ered  ti)  po  at  lar^c  <iiirin£?  the  piiulency  of 
Buch  procecthiigs,  it  will  be  an  escape.  If  the  prisoner  is  brought 
before  a  judge  or  commissioner,  at  a  place  distant  from  the  jail,  and 
such  defendant  is  to  be  detained  a  short  lime  only,  an<l  it  would  be 
inox|>edient  to  transport  him  back  to  the  jail  for  safe  custody  until  the 
decision  upon  the  habeas  corpus,  it  will  not  be  an  escape,  or  a  con- 
temnini;  of  the  process  of  the  <'ourt.  for  the  sheriff  to  detain  him  in 
actual  custody,  out  of  the  common  jail,  althou<j;h  the  prisoner  is  com- 
mitted to  the  custody  of  the  sheriff  by  the  officer  during  the  pendency 
of  such  proceedings.'  It  is  the  duty  of  a  shcrilV  bringing  up  a  I'risoner 
upon  habeas  corpus,  to  have  sullicieiit  foicc  to  prevent  a  rescue  or 
escape  of  such  prisoner.' 

(5  ("OO.  The  person  upon  whom  any  such  writ  shall  have  been  duly 
served,  shall  state  in  his  return,  plainly  and  une(|uivocally, 

1.  Whether  he  have  or  have  not  the  party  in  his  custody,  or  under 
his  power  or  restraint  : 

"2.  If  he  have  the  ]>arty  in  his  custody  or  power,  or  under  his  restraint, 
the  authority  and  true  cause  of  such  imprisonment  or  restraint,  setting 
forth  the  same  at  large: 

3.  If  the  party  be  detained  by  virtue  of  any  writ,  warrant  or  other 
written  authority,  a  copy  thereof  shall  be  annexed  to  the  return ;  and 
the  original  shall  be  produced  and  exhibited  on  the  return  of  the  writ, 
to  the  court  or  officer  before  whom  the  same  is  returnable  ; 

4.  If  the  j)erson  upon  whom  such  writ  shall  have  been  served,  shall 
have  had  the  party  in  his  power  or  custody,  or  under  his  restraint,  at 
any  time  prior  or  subsequent  to  the  date  of  the  writ,  but  has  transferred 
such  custody  or  restraint  to  another,  the  return  shall  state  particularly 
to  whom,  at  what  time,  for  what  cause,  and  by  what  authority,  such 
transfer  look  place  : 

5.  The  return  must  be  signed  by  the  person  making  the  same  ;  and 
except  where  such  person  shall  be  a  sworn  })ublic  officer,  and  shall 
make  his  return  in  his  oflicial  capacity  it  shall  be  verified  by  his  oath.* 
If  the  return  is  evasive  the  court  will  attach  the  officer  making  it.' 

3  010.  A  return  that  the  j)crson  was  not  in  the  custody  of  the  officer 
nerved  is  d<'fective.  And  so  a  return  that  he  had  not  at  the  time  of 
receiving  the  writ,  nor  had  he  since,  the  hody  of  the  defendant  in  his 
custody,  so  that  he  could  com|>ly  with  the  writ,  is  bad.*  If  the  person 
lerved  have  not  the  party,  his  return  should  be  in  the  language  of  the 
ilalule,  that  he  has  not  the  parly  in  his  custody  or  under  his  i)0wcr  or 
restraint     If  the  sheriff  goes  out  of  offn^e  and  his  successor  (pialifies 

I  2  R   S  608,  (,ir,.  »  H.wcll,  308.  6  10  J..lin.  328. 

M   W»2,  ^m,  Hh  c<l  *  'Z  U.  8.  607,  ^32.  •  10  John.  328. 

»  10  Paige,  606.  M.  7W,  ^47,  'llh  cd.  Watson,  107. 


WRITS  OF  IIAHICAS  COIUM'S  AND  CHimoilAKI.       259 

before  the  returii,  such  return  should  be  in  the  naiiic  uf  bf»lli.  Hy 
the  old  shorill*  that  lie  delivered  the  body  to  the  new  .sheriir,  and  by 
the  new  sherill',  that  he  has  his  body  according  to  the  command  of  the 
writ.'  A  return  to  a  writ,  prima  facie,  imports  verity,  and  until  it  it; 
impeached,  need  not  bo  supported  by  affidavit  or  otherwise.  The 
court  will  permit  a  return  to  be  amended,  even  after  it  is  fil(;d.* 

§611.  Whenever,  from  the  sickness,  or  infirmity,  or  lunacy,'  of 
the  person  directed  to  be  produced  by  any  writ  of  habea.s  corpus,  such 
person  cannot,  without  danger,  be  brought  before  the  court  or  oihcer 
before  whom  the  writ  is  made  returnable,  the  party  in  whose  custody 
he  is,  may  state  that  fact  in  his  return  to  the  writ,  verifying  the  same 
by  his  oath  ;  and  if  such  court  or  officer  be  satisfied  of  the  truth  of 
such  allegation,  and  the  return  be  otherwise  sufficient,  they  shall  pro- 
ceed to  decide  upon  such  return,  and  to  dispose  of  the  matter,  in  the 
same  manner  as  if  a  writ  of  certiorari  had  been  issued,  instead  of  such 
writ  of  habeas  corpus.* 

§  Gl2.  Until  judgment  be  given  upon  the  return,  the  court  or  officer 
before  whom  such  party  shall  be  brought,  may  eitiier  commit  such 
party  to  the  custody  of  tlie  sherilV  of  the  county  in  which  such  court 
or  officer  shall  be,  or  place  him  in  such  care,  or  under  such  custody, 
as  his  age  and  other  circumstances  may  require.* 

§  613.  Where  it  appears  from  the  return  to  any  such  writ,  that  the 
party  named  therein  is  in  custody  on  any  process,  under  which  any 
other  person  has  an  interest  in  continuing  his  imprisonment  or  restraint, 
no  order  shall  be  made  for  his  discharge,  until  it  shall  appear  that  the 
party  so  interested,  or  his  attorney,  if  he  have  one,  shall  have  had  the 
like  notice  of  the  time  and  place  at  which  such  writ  shall  have  been 
made  returnable,  as  is  required  to  be  given  of  special  motions  in  the 
supreme  court  of  this  state.*  And  where  it  shall  appear  from  the  return, 
that  such  party  is  detained  upon  any  criminal  accusation,  such  court 
or  officer  shall  make  no  order  for  the  discharge  of  such  party,  until 
sufficient  notice  of  the  time  and  place  at  which  such  writ  shall  have 
been  returned,  or  shall  be  returnable,  shall  be  given  to  the  district 
attorney  of  the  county  in  which  the  person  prosecuting  the  writ  shall 
be  detained.^ 

§  614.  If  on  the  return  of  the  writ,  no  legal  cause  be  shown  for 
such  imprisonment  or  restraint,  or  for  the  continuation  thereof,  such 
court  or  officer  shall  discharge  such  party  from  custody  or  restraint 

'  Watson,  168.  s  2  R.  S.  5G8,  ^15.  '  2  R.  S.  560  <A7 

8  Sewell,  313.  Id.  802,  (>60,  4th  cd.                 Id.  802,  Wj62,  63,  4th  cd. 

9  Watsou,  168.  »  2  R.  S.  661),  ()46.                        Laws  1837,  ch.  240,  62. 
«  2  R.  S.  569,  <j49.  Id.  802,  (>61,  4th  ed.                 6  HiU,  164. 

Id.  802,  ^65, 4th  ed.  12  Wend.  229. 


•>1H)       WUns  OF  IIAMHAS  COlil'L'S  AND  CKRTK^RARI; 

undiM  which  he  is  held.'  If  the  olliccr  has  no  jiiiistliriion,  the  dis- 
i-har<:e  will  he  void,  and  the  pris(»ner  may  be  rccommiltcd.' 

5t>l.").  Ii  .shall  be  the  <luty  of  such  court  or  ollicer  forthwith  to 
remand  such  party  if  it  shall  appear  that  \\v  is  detained  in  custody, 
either, 

1.  By  virtue  of  process  issued  by  any  court  or  jud^e  of  the  United 
Slates,  in  a  case  where  such  court  <>r  jnd-:c  has  exclusive  jurisdiction: 
or, 

2  By  virtue  of  the  fmal  judgment  or  decree  of  any  comjietent  court 
of  civil  or  criminal  jurisdiction,  or  of  any  execution  issued  upon  such 
judgment  or  decree  :  or, 

3.  For  any  contempt  sjx^cially  and  jilainly  charged  in  the  commit- 
ment, by  some  court,  ollicer,  or  body,  having  authority  to  commit 
for  the  contempt  so  charged  :  and, 

4.  That  the  term  during  which  such  parly  may  be  legally  detained 
has  not  expired.' 

^  010.  If  it  appear  on  the  return,  that  the  prisoner  is  in  custody  by 
virtue  of  civil  process,  from  any  court  legally  constituted,  or  issued  by 
any  officer  in  the  course  of  judicial  proceedings  before  him  autiiorized 
by  law,  such  prisoner  can  only  be  discharged,  in  one  of  the  following 
cases : 

1.  Where  the  jurisdiction  of  such  court  orolTicer  has  been  exceeded, 
either  as  to  M)aller,  place,  sum  or  person : 

2.  Where,  though  the  original  imprisonment  was  lawful,  yet  by 
some  act,  omission  or  event,  which  has  taken  place  afterwards,  the 
party  has  become  entitled  to  be  dischargeil ; 

3.  Where  the  process  is  defective,  in  some  matter  of  substance 
required  by  law,  rendering  such  process  void  : 

•1.  Where  the  process,  though  proper  in  furiii,  has  been  issued  in  a 
case  not  allowed   by  law  :* 

r>.  Where  the  person  having  the  custody  of  the  prisoner  under  such 
process,  is  not  the  person  empowered  by  law  to  detain  him  :  or, 

r».  Where  the  process  is  not  authorized  by  any  judgment,  order,  or 
decree  of  any  court,  nor  l)y  any  j)rovision  of  law.* 

3017.  Hut  no  court  or  ollicer,  on  the  return  of  habeas  corpus  or 
certiorari,  issued  jmrsuant  to  the  statute,  shall  have  power  to  intjuire 
into  the  legality  or  justice  of  any  process,  judgment,  decree  or  execu- 
tion, sjK-cificd  in  the  first  section  of  (his  chapter  ;  nor  into  the  justice 
or  propriety  of  any  commitment  for  a  contempt  made  by  any  court, 
oflicer  or  bo<ly,  according  to  law,  and  charged  in  such  commitment  as 

'  2  R.  8.  667,  ^39.  » 2  R.  8.  6fi7,  ^40.  «  2  R.  8.  5f>8,  <>•»!. 

M   WX).  (J>i,  -Ith  ed.  M.  801.  </>b,U\i  nl.  M.  KOI,  ^50,  llli  ed. 

'  I  John.  ai7.  '.»  John.  3%,  *  4  Mnrb.  31. 

10  raigc,  284.  7  Hill,  301. 


WRITS  OF  IIAin:AS  CORPUS  AND  CERTIORARI.       201 

provided  I)y  statute'  But  such  court  or  ofTicer  may  iiKjuire  if  the 
process  be  actually  void,  or  valid  on  its  face,  and  whelher  the  com- 
mitting magistrate  had  jurisdiction,  notwithstanding  the  recital  of  the 
necessary  jurisdictional  facts  in  the  comniitinent.'  And  where  one  is 
committed  for  contcmj)!  for  refusing  to  answer  as  a  witness,  though 
the  court  or  officer  before  whom  the  prisoner  is  brought  on  habeas 
corpus,  has  no  right  to  inquire  into  the  truth  of  the  facts  adjudged,  nor 
whether  the  questions  put  to  the  witness  were  proper,  nor  whether  he 
was  privileged  from  answering,  yet  if  the  justice  committing  had  no 
jurisdiction  of  the  matter  ;  as  where  a  justice  issued  a  warrant  against 
one  not  in  his  county,  and  for  an  offence  not  committed  therein,  such 
witness  may  be  discharged  by  such  court  or  officer.  But  in  such  case, 
notice  must  first  be  given  to  the  district  attorney,  or  the  discharge  will 
be  irregular.^  And  where  one  is  committed  for  actual  contempt,  a 
discharge  under  the  bankrupt  act  does  not  operate  to  discharge  him 
from  a  commitment  for  the  non-payment  of  a  fine  for  such  contempt, 
and  a  discharge  on  habeas  corpus  by  a  supreme  court  commissioner 
will  be  irregular.* 

^  618.  If  it  appear  that  the  party  has  been  legally  committed  for 
any  criminal  oflence,  or  if  he  appear  by  the  testimony  offered  with  the 
return,  or  upon  the  hearing  thereof,  to  be  guilty  of  such  an  oflence, 
although  the  commitment  be  irregular,  the  court  or  officer  before  whom 
such  party  shall  be  brought,  shall  proceed  to  let  such  party  to  bail,  if 
the  case  be  bailable,  and  good  bail  be  ofTered  ;  or  if  not,  shall  forthwith 
remand  such  party  to  the  custody,  or  place  him  under  the  restraint 
from  which  he  was  taken,  if  the  person  under  whose  custody  or  restraint 
he  was,  be  legally  entitled  thereto ;  if  not  so  entitled,  he  shall  be  com- 
mitted by  such  court  or  officer  to  the  custody  of  such  officer  or  person, 
as  by  law  is  entitled  thereto.^ 

^  619.  Instead  of  a  habeas  corpus,  the  court  or  ofTicer  may  issue  a 
certiorari,  and  upon  the  return  thereto,  such  officer  or  court  shall  hear 
the  proofs  of  the  parties,  and  if  it  appear  that  the  person  detained  is 
illegally  imprisoned,  confined  or  restrained  of  his  libertv,  the  court  or 
officer  shall  grant  a  writ  of  discharge  commanding  those  having  such 
person  in  their  custody,  to  discharge  him  forthwith  ;  and  if  it  appear 
that  such  person  is  legally  detained,  imprisoned  or  confined,  and  if  not 
entitled  to  be  bailed,  such  court  or  officer  shall  cease  from  all  farther 
proceedings  thereon.® 

^  620.  If  upon  the  return  to  any  writ  of  certiorari,  it  shall  appear 
that  the  person  detained  is  entitled  to  bail,  the  court  or  officer  before 

»  2  R.  S.  568,  ^42.  3  5  Hill,  165.                             «  2  R.  S.  569,  ^^50,  51,  62. 

Id.  801,  «J57,  4th  cd.  *  10  Paige,  284.                            Id.  802,  <\<\66, 67,  68,  4th  ed. 

s  4  Barb.  31.  s  2  R.  S.  668,  ^^43,  44. 

6  Hill,  166.  Id.  801,  %d8,  59.  4th  ed. 


202       WIUTS  OF  IIAUKAS  I'OUl'US  AND  CHllTlORAlU. 

whoiii  the  same  was  rolurnaMo.  .sliuU  by  order  cerlificil  l.y  the  rioik  of 
the  court,  or  by  the  ullicer  granting  the  saine.tlirecl  the  sum  in  which 
such  person  shall   be  held  to  bail,  iind  the  court  at  which  ho  shall  be 
re»iuired  to  ni»|»ear.  and  that  un  such  bail  being  entered  into,  in  con- 
formity  to  such  order   and   the   provisions  of  law,  such  prisoner  bo 
discharged.     U|>on  the  pro<luction  of  such  order  to  any  judge  of  the 
county  courts  of  any  county,  he  shall  be  authorized  to  take  the  recog. 
nizance  of  the  i)crson  so  tletained,  nn<l  of  two  suHicient  sureties,  in  the 
sum  so  directed,  with  a  condition  for  the  appearance  of  such  person  at 
Uie   court  designalotl   in    such  order.     Hut   previous  to   taking  such 
recognizance,  such  judge  shall  be  satisfied  by  the  oath  of  ihe  persons 
oflering  themselves  as  sureties,  that  they  are  householders  in  the  county, 
and  are  severally  worth  double  the  sum  in  which  they  shall  be  required 
to  be  bound,  over  and  above  all  demands  against  them.     Such  judge 
shall   file  the  recognizance  taken  by  him  with  the  clerk  of  the  court 
before  which  the  prisoner  shall  be  bound  to  appear,  and  shall  certify  on 
such  order,  the  comi»liance  therewith.     The  j.roduclion  of  such  order, 
so  certified,  shall  entitle  such  prisoner  to  be  discharged  from  imprison- 
ment, for  the  cause  which  shall  have  been  returned  to  such  certiorari.' 
^021.  If  the  person  upon  whom  such  writ  of  habeas  corpus  or 
certiorari  shall  have  been  duly  served,  shall  refuse  or  neglect  to  obey 
the  same,  by  producing  the  party  named  in  such  writ  of  habeas  corpus, 
and  making  full  and  explicit  return  to  every  such  writ  of  habeas  corpus 
or  certiorari,  within  the  tiuie  reipiired  by   the  statute,  and  if  no  such 
sullicient  excuse  shall  be  shown  for  such  refusal  or  neglect,  it  shall  be 
the  duty  of  the  court  or  ollicer  before  whom  such  writ  shall  have  been 
made  returnable,  ujmju  due  proof  of  the  service  thereof,  forthwith  to 
issue  an  attachment  against  such  person,  directed  to  the  sheriff"  of  any 
county  within  this  state,  and  if  it  be  the  sheriff  who  is  in  default,  then 
to  the  coroner  or  any  other  person  to  be  designated  therem,  who  shall 
have  full  jtower  to  execute  the  same,  and  commanding  him  forthwith 
to  aj •prebend  such  person,  and  to  bring  him  immediately  before  such 
court  or  oftker;  and  on  such  person's   being  so  brought,  he  shall  be 
committed   to  close  custody,  in  the  jail  of  the  county  in  which  such 
court  or  oflicer  shall  be,  (but  if  it  be  the  sherifl',  he  may  be  committed 
to  any   jail  other  than   his  own,)  without   being  allowed  the   liberties 
thereof  until  he  shall  make  return  to  such  writ,  and  complying  with 
any  order  that  may  be  made  by  such  court  or  ollicer  in  relation  to  the 
person    for  whose  relief  such  writ  shall   have  been  issued.'     And  so 
such  jKjrson  making  default  may  be  attached  for  a  false  return,  but  not 

>  2  B.  8.  670,  <%(fMM  •  '2  U.  S  f.OC,  (,(,'44,  36. 

Id.  803,  ^^70-72,  4Hi  c<l.  M.  WK),  <^<^i\>,  6U,  illi  cd. 


WRITS  OF  nAnp:AS  corpus  and  CKRTIORAPJ.     203 

unless  it  appears  to  have  been  done  wiH'iilly  ;  and  so  such  person  may 
be  attached  where  he  makes  an  evasive  return.' 

^  022.  The  court  or  officer  by  whom  any  such  attachmerjt  rnav  J>c 
issued,  may  also,  at  the  same  time  or  afterwards,  issue  a  precept  to  the 
same  sheriff  or  other  person  to  whom  »Uf\\  attacrhment  shall  have  been 
directed,  commanding  him  to  bring  forthwith  before  such  court  or 
officer,  the  party  for  whose  benefit  such  writ  of  habeas  corpus  or  cer- 
tiorari shall  have  been  allowed  ;  who  shall  thereafter  remain  in  the 
custody  of  such  sheriff  or  ])erson  until  he  shall  be  discharged,  bailed  or 
remanded,  as  such  court  or  officer  shall  direct.  And  in  the  execution 
of  such  attachment  or  precept,  or  either  of  them,  the  sheriff  or  other 
person  to  whom  they  shall  be  directed,  may  call  in  his  aid  the  power 
of  the  county,  as  in  other  cases.' 

^  G23.  Obedience  to  any  writ  of  discharge,  or  to  any  order  for  the 
discharge  of  any  prisoner,  granted  pursuant  to  the  ))rovisions  of  the 
statute,  as  herein  before  mentioned,  may  be  enforced  by  the  court  or 
officer  issuing  such  writ  or  granting  such  order,  by  attachment,  in  the 
same  manner  as  herein  provided,  for  a  neglect  to  make  return  to  a 
writ  of  habeas  corpus,  and  with  the  like  effect,  in  all  respects;  and  the 
person  guilty  of  such  disobedience,  shall  forfeit  to  the  party  aggrieved, 
one  thousand  two  hundred  and  fifty  dollars,  in  addition  to  any  special 
damages  such  party  may  have  sustained.^ 

§  G24.  Whenever  it  shall  appear  by  satisfactory  proof,  that  any  one 
is  held  in  illegal  confinement  or  custody,  and  that  there  is  good  reason 
to  believe  that  he  will  be  carried  out  of  the  state,  or  suffer  some  irre- 
parable injury,  before  he  can  be  relieved  by  the  issuing  of  a  habeas 
corpus  or  certiorari,  any  court  or  ofiicer  authorized  to  issue  such  writs, 
may  issue  a  warrant  under  his  hand  and  seal,  reciting  the  facts,  and 
directed  to  any  sheriff,  constable,  or  other  person,  and  commanding 
such  officer  or  person  to  take  such  prisoner,  and  forthwith  to  bring 
him  before  such  court  or  officer,  to  be  dealt  with  according  to  law.' 
When  such  proof  shall  also  be  siifficient  to  justify  an  arrest  of  the 
person  having  such  prisoner  in  his  custody,  as  for  a  criminal  offence 
committed  in  the  taking  or  detaining  of  such  prisoner,  the  warrant  shall 
also  contain  an  order  for  the  arrest  of  such  person  for  such' offence.^ 
And  the  officer  or  person  to  whom  such  warrant  shall  be  directed,  shall 
execute  the  same  by  bringing  the  prisoner  therein  named,  and  the 
person  who  detains  him,  if  so  commanded  by  the  warrant,  before  the 
court  or  officer  issuing  the  same  ;  and  thereupon  the  person  detaining 
such  prisoner  shall  make  return,  in  like  manner  and  the  like  proceed- 

'  Sewell,  315.  3  o  R.  S.  670,  ^57.                    s  2  R.  S.  572,  $G6. 

10  John.  328.  Ifl.  803,  ^73,  4th  cd.                 Id.  806,  ^82,  4th  cd. 

2  2  R.  S.  567,  ^^36,  37.  *  2  R.  S.  572,  ^>C5. 

Id.  800,  ^^51,  52,  4th  cd.  Id.  803,  v81,  4th  ed. 


2il\       WRITS  OF  IIAHRAS  CORPrS  AND  CKRTIORARI. 

inns  shall  he  had  as  if  a  writ  of  habeas  rorpus  had  been  issued  in  ihc 
first  instance.'  If  the  person  having  such  prisoner  in  his  <ust<>dy  .shull 
be  brought  before  such  court  or  olVicer,  as  for  a  criminal  oHence,  he 
shall  bo  exaniine«l.  <'onifnitted.  bailed  or  discharged  by  such  «-ourt  or 
orticer  in  like  manner,  as  in  othtr  criminal  cases  of  the  like  nature.* 

§  6t25.  \o  person  who  has  been  discharged  by  the  order  of  any 
court  or  niricer,  ujxm  habeas  corpus  or  certiorari,  issued  pursuant  to 
the  provision  of  the  statute,  as  hereinbefore  mentioned,  siiall  bo  again 
imprisoned,  restrained  or  kci^t  in  custody,  for  the  same  cause  ;  but  it 
shall  not  Ih?  deemed  the  same  cause. 

1.  If  he  shall  have  been  disciiarged  from  a  commitment  on  a  criminal 
charge,  and  be  afterwards  committed  for  the  same  oflence,  by  the 
legal  order  or  process  of  the  court,  wherein  he  shall  be  bound  by 
recognizance  to  aj>pear,  or  in  which  he  sliall  be  in<licted  or  convicted 
for  the  same  olVence  :  or, 

2.  If,  after  a  discharge  for  a  defect  of  proof  or  from  any  material 
defect  in  the  commitment,  in  a  criminal  case,  the  prisoner  may  be 
again  arrested  on  suiricienl  proof,  and  committed  by  legal  process  for 
the  same  offence  :  or. 

3.  If,  in  a  civil  suit  the  party  has  been  discharged  for  any  illegality 
in  the  judgment  or  process  herein  before  specified,  and  is  afterwards 
imprisoned  by  legal  process  for  the  same  cause  of  action  :  or, 

•1.  If,  in  any  civil  suit,  he  shall  have  been  discharged  from  commitment 
on  mesne  process,  and  shall  afterwards  be  committed  in  execution,  in 
the  same  cause,  or  on  mesne  process,  in  any  other  cause,  after  such 
first  suit  shall  have  been  discontinued.^ 

^  520.  If  anv  person,  either  solely,  or  as  a  member  of  any  court ; 
or  in  the  execution  of  any  order,  judgment  or  i)rocess,  shall  knowingly 
reconmiit,  impri.son  or  restrain  of  his  liberty,  or  cause  to  be  recom- 
n^ittcd,  imj)risoned  or  restrained  of  his  liberty,  for  the  same  cause, 
excejjt  as  provided  in  the  last  section,  any  person  so  discharged,  or 
shall  knowingly  aid  or  assist  therein,  ho  shall  forfeit  to  the  party 
aggrieved  one  thousand  two  huntlred  and  fifty  dollars,  and  shall  also  be 
deemed  guilty  of  a  misdemeanor.  And  (ni  conviction  may  be  lined 
or  imprisoned,  f>r  both;  but  such  fine  shall  not  exceed  one  thousand 
dollars,  nor  such  imprisonment  six  months.* 

^  G27.  Any  one  having  in  his  custody  or  under  his  power,  any 
person,  who  by  the  provision  of  the  statute,  as  herein  before  mentioned, 
would  be  entitled  to  a  writ  of  habeas  cinpus  or  certiorari,  to  incjuire 
into  the  caune  of  his  detention,  who  sh:dl  with  intent  to  elude  service 

«  2  R  H  R"2  <>fi7  »  2  n  H.  671.  ^)9.  ♦  2  R.  8.  571,  WCO,  04. 

I.l       -    ■        li!,  ..!  M.  bO-l,<>75,  JlhtMl.  1.1.  801,^^70,  bO.ltbed. 

»  2  n 


WRITS  OF  HABEAS  CORPUS  AND  CRRTFORARI.       2G5 

of  any  such  writ,  or  to  avoid  the  cflect  thereof,  transfer  any  such  pris- 
oner to  the  custody,  or  place  him  under  the  power  or  control  of  another, 
or  conceal  him,  or  change  the  place  of  his  confinement,  shall  he  deemed 
guilty  of  a  misdemeanor.  And  any  one  having  in  iiis  ciistodv  or 
under  his  power,  any  person  for  whose  relief  a  writ  of  haheas  corpus 
or  certiorari  shall  have  been  duly  issued,  who,  with  intent  to  elude  the 
service  of  such  writ,  or  to  avoid  the  effect  thereof,  shall  transfer  such 
prisoner  to  such  custody,  or  place  him  under  the  power  or  control  of 
another,  or  conceal  him,  or  change  the  place  of  liis  confinement,  shall 
be  deemed  guilty  of  a  misdemeanor,  and  may  be  punished  by  fine  or 
by  imprisonment,  or  both,  but  such  fine  sliall  not  exceed  one  thousand 
dollars,  nor  such  imprisonment  six  months.' 

(3  628.  No  sherilT  or  other  officer  shall  be  liable  to  any  civil  action 
for  obeying  any  such  writ  or  order  of  discharge  ;  and  if  any  action  shall 
be  brought  against  such  officer  for  sufil-ring  any  person  committed  to 
his  custody,  to  go  at  large,  pursuant  to  any  such  writ  or  order,  lie  may 
plead,  or  with  his  plea  of  the  general  issue,  may  give  notice  of  the 
same  in  bar  of  such  action.- 

§  029,  If  a  i)arty  charged  with  misconduct,  be  in   the  custody  of 
any  officer,  by  virtue  of  an  execution  against  his  body,  or  by  virtue  of 
any  process  for  other  contempts,  or  misconduct,  the  court  may  award 
a  habeas  corpus  to  bring  uj)  the  body  of  such  person,  to  answer  for 
such  misconduct.     In  cases  where  a  party  is  entitled  to  an  attachment 
against  any  person,  without  the  special  order  of  the  court,  and  such 
person  shall  be  in  custody,  as  specified  in  the   last  section,  a  writ  of 
habeas  corpus  to  bring  up  such  person,  may  be  allowed  by  any  judge 
of  the  court,  or  by  any  officer  authorized  to  perform  the  duties  of  such 
judge  in  vacation.     Such  writ  shall  authorize  the  sheriff  in  whose 
custody  such  person  shall  be,  to  remove  and  bring  him  before  the  court 
to  which  the  same  shall   be  returnable,  and  to  detain  him  at  the  place 
where  such  court  shall  be  sitting,  until  some  order  be  made   by  the 
court  for  his  disposition.^ 

■  ^  630.  If,  upon  the  return  of  a  habeas  corpus  issued  by  a  justice  of 
the  supreme  court,  to  bring  before  him  any  child  detained  by  the  society 
of  Shakers,  it  shall  appear  that  the  child  therein  mentioned  cannot  be 
found,  and  satisfactory  proof  be  made  to  the  officer  issuing  the  writ, 
that  such  child  is  secreted  or  concealed,  by  or  among  anv  society  of 
Shakers  in  this  state,  he  may  issue  his  warrant  directed  to  the  sheriff 
of  the  county  where  the  said  child  is  suspected  to  be,  commanding 
such  sheriff,  in  the  day  time,  to  search  the  dwelling  houses  and  other 
buildings  of  such  society,  or  of  any  members   thereof,  or  any  other 

'  2  R.  S.  572,  (J^61,  62.  64.       2  2  R.  S.  571,  $58.  3  2  R.  S.  636,  ^^7,  8,  9. 

Id.  804,  ^^77,  78, 81,  4th  ed.     Id.  803,  $74,  4th  ed.  Id.  770,  $<>7,  8,  9,  4th  ed 

35 


2r>6  WRITS  OF  ixcjuniY. 

btiiltlinc:  or  dwollint;  house  s[>ociried  in  the  warrant,  for  s»irh  chilil,  nnd 
to  bririi^  him  before  such  oflicer  ;  and  tho  shfriH  shall  lorthwith  exe- 
cute surh  warrant.' 

(^  (131.  The  allowance  of  writs  of  habeas  corpus  ad  teslificandum, 
and  the  proceeilini^s  thereunder  have  already  been  |>ointed  out."  And 
in  what  cases  and  under  what  circumstances  one  in  prisf>n  under  the 
stattite  concerninir  the  examination  of  insolvent  debtors  for  refusinf^  to 
be  examined  or  to  siirn  his  examination  may  be  discharged  on  habeas 
corjuis,  will  be  pointed  out  hereafter.' 

CHAPTER  XXXVII. 

WRITS  OF  INQUIRY. 
1.     WRIT    OF    INUl'IRV    TO    ASt^ES.S    DAMAGES    IV     AN    ACTION. 

^  (532.  There  are  several  forms  of  writs  of  inquiry.  They  are 
judicial  process,  and  are  issued  out  of  courts  of  record,  and  directed 
and  delivered  to  the  sherifl'  of  the  proper  county,  by  which  he  is 
commanded  that  by  the  oath  of  twelve  good  and  lawful  men  of  his 
county  he  diligently  inquire  of  the  matters  stated  and  set  forth  in 
the  said  writ,  and  return  the  inquisition  under  his  hand  and  the  hands 
of  such  jurors  to  the  court  out  of  which  such  writ  issued.  The  writ 
of  in<juiry  by  which  the  sheriff  is  commanded  to  assess  the  damages 
of  a  plaintiff  in  an  action,  is  less  frequently  used  now  tlian  formerly, 
as  it  has  in  such  cases  been  in  a  great  measure  superceded  by  the 
provisions  of  the  Code,  and  the  course  and  jiractice  of  the  courts, 
though  it  has  not  been  entirely  abolished.  The  duties  of  the  officer 
executing  any  such  writ,  are  judicial  as  well  as  ministerial  in  their 
character,  yet  it  may  be  cxecuteil  by  the  under-sherilf,  or  by  a  deputy, 
OS  well  as  by  the  sheriff  himself,  to  whom  it  is  directed.* 

5  fi33.  The  writ  must  be  executed  on  or  befo^-e  the  return  day 
thereof,  and  if  executed  after  that  day  it  will  be  void,  and  will  bo  set 
aside  by  the  court.  But  if  the  inquest  is  taken  upon  the  return  day, 
the  verdi<;l  will  be  good  though  it  is  not  rendered  until  after  that  day.' 
It  cannot  be  executed  upon  Sunday,  and  the  jury  cannot  retire  upon 
Saturday  night  and  bring  in  a  verdict  upon  Sunday,  unless  they  retired 
before  twelve  o'clock.* 

2  (»3I.  The  (jlficer  to  whom  such  writ  is  directed  and  delivered  for 
execution,  inu^t  summon  twelve  proper  jurors  of  his  county,  to  attend 
at  the  time  and  |>lace  ajipointed,  to  serve  as  jurors  u|>on  the  inquest. 
The  mode  of  Mummoning  jurors,  and  who  may  be  summoned  and  who 
excused,  have  already  been  pointed  out.'     The  officer  should,  as  in  all 

«  2  R  f».  149,  (fi  >  r..Mi,  ^068.  •  2  R.  8.  275,  ^7. 

1.1   .'..'{.l.  i/i,  4lh  e«l.  ♦  •!  John.  0.1.  Id.  461,  <^lf>,  4th  cd. 

t  Aiilc,  <//^l-2U7.  *  WaUoD,  CI,  221.  '  AiiU-,  <>16y,  &c. 


WRITS  OF  INQIIIIIY.  267 

other  rases  where  he  is  re(|iiin'(l  to  select  the  jurors  himself,  he  careful 
to  select  those  only  who  are  competent  jurors,  vviio  are  not  interested 
in  the  event  of  the  suit,  and, are  nowise  akin  to  either  of  the  [larties, 
and  who  are  unbiassed  for  or  against  either  party,  who  have  not 
expressed  an  ojjinion  upon  the  (juestion.  If,  at  the  time  and  j»lare  of 
hearing,  and  before  the  jurors  are  sworn,  objection  is  made  by  cither 
party  to  any  juror  summoned  by  the  ofFicer,  he  shall  hear  it,  and  if  it 
is  good  and  sullicient,  he  shall  set  the  juror  aside  and  summon  anc»ther 
in  his  place  ;  and  if  he  refuses  to  do  so,  the  court  will  set  aside  the 
inquest.  The  oltjcction  to  the  juror,  however,  must  be  stated  openly 
to  the  oflicer,  and  not  privately,  and  if  so,  and  the  sheriff  sets  aside  the 
juror,  the  court  will  set  aside  the  inquest.'  The  truth  of  the  objection 
may  be  determined  upon  the  oath  of  the  juror  himself,  if  it  do  not  tend 
to  his  dishonor,  otherwise  it  must  be  proved  by  the  testimony  of  others. 

^  G35.  The  officer  to  whom  the  writ  is  directed  and  delivered  for 
execution,  presides  u[)on  the  execution  thereof.  lie  swears  the  jurors 
and  witnesses,  and  determines  and  directs  the  course  of  proceeding, 
and  decides  upon  the  admissibility  of  evidence  ;  and  in  all  these  respects 
the  proceedings  are  the  same  as  in  courts  of  justice.  The  officer  has 
a  discretion  in  adjourning  the  hearing,  even  after  it  has  commenced, 
but  if  the  defendant  is  ready,  it  can  only  be  done  on  the  application  of 
the  plaintiff,  on  the  payment  of  costs.  The  adjournment  must  not  be 
beyond  the  return  day  of  the  writ. 

^  G36.  In  matters  arising  upon  contract,  the  only  question  upon 
which  testimony  can  be  adduced  upon  taking  an  inquest  before  a 
sheriff's  jury,  is  as  to  the  amount  of  damages.  The  defendant  may 
contradict  the  jjlaintiff's  witnesses  as  to  the  amount  of  damages  claimed, 
but  he  cannot  prove  a  set-off  for  the  purpose  of  reducing  such  damages. 
Whether  the  plaintiff  proves  any  damages  or  not  in  such  case,  he  is 
generally  entitled  to  nominal  damages.'  But  if  the  action  be  in  tort,  he 
must  show  his  damages.  Thus,  where  goods  are  taken,  he  need  not 
show  that  the  goods  were  his,  but  he  must  show  their  value.  In 
slander  no  proof  is  necessary.  But  in  an  action  for  an  injury  to  the 
person,  a  different  rule  prevails ;  and  so  in  trespasses  or  trover  for 
goods,  actual  damages  must  be  shown,  and  the  time  when  the  injury 
was  done.  In  actions  upon  penal  bonds,  it  is  made  the  duty  of  the 
jury  to  inquire  into  the  truth  of  the  breaches  assigned  by  the  plaintiff, 
and  to  assess  the  damages  of  the  j)laintiff  sustained  thereby.^ 

^  637.  After  the  jury  have  heard  all  the  testimony  they  must  retire, 
or  consult  apart,  and  make  up  their  inquisition  before  hearing  any  other 
inquest,  otherwise  it  will  be  set  aside.*     And  the  sheriff  must  permit 

1  16  John.  179.  3  2  R.  S.  378,  ^6.  i  3  Wend.  478. 

s  3  Cow.  296.  Id.  627,  ^6,  4th  cd. 


268  WHITS  OF  iNcMim. 

no  one  10  mingle  with  il»o  jury  <lurinLj  llicir  ileiiberations,  and  if  lie 
tlocs  it  is  irregular.'  The  inquest  nuisl  be  in  writing,  and  be  signed 
by  the  .sherifl"  and  jurors,  and  is  usually  under  .seal,  though  this  is  not 
necessary  ;  and  the  slicritV  indorses  his  return  ujion  the  writ  and 
delivers  it  to  the  plainlill's  attorney.  The  jurors  arc  entitled  to  twelve 
and  a  half  cents  each,  for  serving,  which  must  be  paid  by  tlie  plaintitV 
or  by  the  sherilV,  who  charges  it  in  his  fees. 

'J.    WUIT    OK    AD    ULOD    DAMMM. 

2  038.  The  writ  of  ad  <juod  damnum  is  a  writ  c»f  inquiry  issuing  out 
uf  the  .supreme  court  to  assess  the  damages  to  the  owner  of  any  land 
sought  to  be  taken  for  the  use  of  the  state,  or  of  the  United  Stales ; 
and  is  directed  to  the  sherifT  of  the  county  where  such  lands  are  situ- 
ated, unless  the  court  shall  direct  such  damages  to  be  assessed  by  a 
foreign  jury.'* 

2  G30.  Upon  such  writ  being  delivered  to  the  sheriff",  he  shall  give 
at  least  three  weeks  notice  of  the  time  and  place  of  executing  the 
same,  by  publishing  a  notice  thereof  in  a  newspaper  printed  in  his 
county.  And  he  shall  summon  twelve  qualified  jurors  of  his  county, 
to  attend  at  such  time  and  place,  and  shall  then  and  there  administer 
to  carh  of  said  jurors,  an  oath  that  he  will  diligently  inquire  concerning 
the  mailers  specified  in  the  said  writ,  and  will  give  a  true  verdii't 
according  to  the  best  of  his  judgment,  without  favor  or  partiality, 
when  such  jury  shall  proceed  to  view  all  the  lands  and  tenements 
sjiecified  in  the  writ ;  and  having  duly  considered  the  value  thereof, 
they  shall  j)roceed  to  assess  the  damages  which  the  owner,  or  if  there 
Ijc  several,  which  the  respective  owners  of  such  lands  and  tenements 
will  sustain  by  lieing  deprived  thereof.  They  shall  make  an  incpiisition 
to  be  signed  by  themselves  and  the  sheriff,  in  which  they  shall  set  forth 
the  names  of  the  several  owners  of  the  lands  and  tenements  in  (jues- 
lion,  and  the  rights  of  each  owner  resj)cctively,  so  far  as  the  same  can 
be  ascertained  by  them,  together  with  the  amount  to  be  paid  by  the 
j»copIe  of  this  slate,  or  by  the  United  States,  and  to  whom  ]>articularly, 
and  also  the  owner's  costs  and  expenses  ;^  which  inquisition  the  sherilV 
shall  forthwith  return,  together  with  the  writ  to  the  supremo  court.* 

',i.    WUIT    OK    INULIRY     L'I'ON    COODH    AM)      (IIATTKLS    OK    ONK     CONVICTED 
<»U    Ol'TI.AWED    KOIl    TUKASo.N. 

J  010.   N\  litnever  he   shall  deem  it  necessaiy,  the  attorney  general 

''  1  n.irl..  24. 


•  3  C.-i 

»2K 

M 

.1.  ..I 

2  i: 

Id 

■      .   u  .-,1 

spKciAf.  riU)cr:i:i)iNas.  209 

mny  cause  a  writ  to  be  issued  out  ol'  llie  supreme  court,  to  the  sherill 
ol  any  county,  to  iiu|uire  uluit  i^'oods  and  chattels,  any  jicrson  con- 
victed or  outlawed  for  treason,  had  at  the  time  of  such  convi<;tion  or 
outlawry,  and  to  seize  and  safely  keep  the  same,  and  return  the  in«|ui- 
sition  to  the  supreme  court,  where  any  person  aggrieved  thereby  may 
traverse  the  same.  On  the  execution  of  such  writ,  the  sherill* proceeds 
as  in  other  cases.  He  summons  and  swears  the  jury  and  witnesses, 
and  when  the  jurors  have  made  and  signed  their  inquisitif^n,  he  shall 
sign  the  same  also,  and  shall  thereupon  take  the  goods  and  chattels  so 
found  by  the  jury  to  be  of  the  said  person  at  the  time  of  his  convic- 
tion or  outlawry,  into  his  possession,  and  retain  possession  of  the 
same,  until  a  proper  writ  shall  be  issued  out  of  the  supreme  court  com- 
manding him  to  sell  the  same,  when  he  shall  make  sale  thereof,  and 
bring  the  moneys  arising  from  said  sale  into  court  lor  the  u>(',  of  the 
people  of  this  state.' 

CHAPTER  XXXVIII. 

SPECIAL  PROCEEDINGS. 

1.     WARRANT    UNDER    THE    NON-IMPRISONMENT    ACT. 

§,  G41.  The  warrant  is  not  a  criminal,  but  a  summary  civil  proceed- 
ing," and  may  be  granted  by  any  judge  of  the  court  in  which  the  action 
is  brought,  or  by  any  officer  authorized  to  perform  the  duties  of  such 
judge,  and  by  any  judge  of  a  court  of  record  in  any  county  in  which 
the  judgment  on  which  the  complaint  is  grounded  is  docketed,  and  in 
which  the  defendant  resides.'  If  the  warrant  is  issued  before  the 
summons  is  served  by  which  the  suit  is  commenced,  it  will  be  void,* 
though  the  officer  who  executes  it  would  not  be  a  trespasser  if  it  did 
not  show  such  fact  on  its  face.^ 

^  CA2.  The  warrant  is  issued  in  the  name  of  the  peojije.  and  must 
be  signed  by  the  officer  issuing  the  same,  and  may  be  with  or  without 
seal,  and  be  directed  to  any  sheriff,  constable  or  marshal  within  the 
county  where  such  ollicer  shall  reside,  and  shall  therein  briefly  set 
forth  the  complaint,  and  command  the  officer  to  whom  the  same  shall 
be  directed,  to  arrest  the  person  named  in  such  warrant,  and  bring 
him  before  such  officer  without  delay  ;  which  warrant  shall  be  accom- 
panied by  a  copy  of  all  affidavits  presented  to  such  officer  upon  which 
the  warrant  issued,  which  shall  be  certified  by  such  officer.^ 

g  643.  The  officer  to  whom  such  warrant  shall  be  delivered,  shall 

>  1  R.  S.  284,  ^<^3,  4.  3  2  R.  S.  230,  (/^G,  7,  4th  ed.  s  Ante,  ^283. 

Id.  5G1,  %3,  4,  4th  ed.  Laws  1831,  ch.  3(X),  ^3.  «  2  R.  S.  230,  p,  4th  ed. 

8  6  Hill,  606.  "     1848,    "  48,  ^2.  Laws  1831,  ch.  300,  <>6. 

4  2  Sandf.  261. 


270  SPECIAL  rROCHi:DIN(JS. 

execute  the  same,  by  nrrestini;  the  person  naiiieii  tlien-in.  if  lie  can  be 
foiinil  in  Ills  county.'  The  powers  and  duties  ol  the  ollicer  on  making 
tlie  arrest,  are  the  same  as  on  civil  process.  On  nmking  the  arrest, 
the  ollicer  shall  deliver  to  the  person  so  arrested,  the  certified  copies 
ol  atlidavits  delivered  to  him  with  the  warrant ;  and  he  shall  bring 
him  bef(»re  the  otlicer  issuinja;  the  warrant ;  and  shall  keep  him  in  cus- 
tody until  he  is  discharged  or  committed.  And  if  he  sulfers  him  to 
escajHv  he  will  he  liable  to  the  plaiiitiH  for  his  damages.'' 

^  tm.  Uj>on  bringing  the  defendant  before  the  officer,  he  mav,  bv 
commitment  iinder  his  hand,  direct  that  such  defendant  be  committed 
to  the  jail  of  the  county  in  which  such  hearing  shall  i)e  had,  to  be  there 
detained  until  ho  shall  be  discharged  according  to  law  ;  and  such 
delendant  shall  be  committed  and  detainetl  accordingly  ;  and  when  so 
committed  he  shall  remain  in  custody  in  the  same  manner  as  other 
prisoners  on  criminal  jirocess,  until  a  final  judgment  shall  have  been 
rendered  in  his  favor  in  the  suit  prosecuted  by  the  creditor  at  whose 
instance  such  defendant  shall  have  been  committed  ;  or  until  he  shall 
have  assigned  his  property  and  obtained  his  discharge,  as  an  insolvent 
debtor  under  the  provisions  of  said  law  ;  or  until  he  is  discharged  by 
the  olVicer  committing  him,  or  any  other  person  authorized  to  perform 
the  duties  of  such  officer,  on  such  defendant  paying  the  debt  or  demand 
claimed,  or  giving  security  for  the  payment  thereof,  under  the  provis- 
ions of  said  act  ;  or  on  his  executing  the  bonds  mentioned  in  said  act. 
Before  the  jailor  discharges  the  defendant,  he  must  be  served  with  an 
order  of  discharge  from  the  j>roper  oflicer.^ 

(5  615.  If  the  defendant  has  been  convicted  of  a  misdemeanor  in 
secreting,  assigning,  or  conveying,  or  otherwise  disposing  of  any  of 
his  property  with  the  intent  to  prevent  the  same  from  being  levied 
upon  l)y  virtue  of  any  execution,  to  defraud  any  creditor,  or  to  prevent 
such  [troperty  being  made  liable  for  his  debts,  the  trustees  appointed 
under  the  provisions  of  the  said  act,  if  they  suspect  that  the  person  so 
convicted,  has  concealed  about  his  person  or  otherwise,  money  or 
evidences  of  debt,  upon  making  oath  of  the  same  before  anv  judge  of 
a  county  court,  and  on  such  judge  being  satisfied  that  such  suspicions 
are  well  fr»unded,  he  may  issue  a  warrant  authorizing  and  commanding 
any  sheritr  or  constable  to  search  the  person  of  such  defendant,  and 
any  place  occupied  by  him,  or  any  trunk  or  other  article  owned  or 
I>osses8p«l  by  him,  for  such  money  or  evidences  of  del)t,  and  to  deliver 
what  shall  be  so  discovered,  to  such  trustees.* 

'  r,  Hill.f/i.'i  »2R.  8,2ai/^ll,17,4lhcil. 
«  !'■,  I'.arl.   ■i'2\  L.iwh  1.H:!(»,<Ii.  iW^W^,  H- 

'J  U.  K.  28<),</>9, 10,4lh  od  *  2  H   H  rid,  <yi(),  4lli  ed. 

L»w8  1831 ,  ch.  800,  ^<>6,  G.        Lawn  IbUO,  cb.  UOO,  ^27. 


SPKCIAI.  PROCKRDIXCS.  271 

2.   pnorKKDiN<;s  suim'I.kmkntaky  'I'<.    riir.   kxrcution. 

2  040.  When  an  execution  against  i)r()j)erly  of  tlie  judgment  debtor, 
or  of  any  one  of  the  several  debtors  in  the  same  judgment,  issued  to  the 
sheiitrof  the  county  ^vhere  lie  resides;  or  if  he  does  not  reside  in  the  state, 
to  the  sheriU'of  the  county  where  the  judgment  roll,  or  a  transcript  of 
a  justice's  judgment,  for  twenty-five  dollars  or  upwards,  exclusive  of 
costs,  is  file<l  or  returned  unsatisfied  in  whole  or  in  i»art,  the  judgment 
creditor,  at  any  time  alter  such  return  made,  is  entitled  to  an  order 
from  a  judge  of  the  court,  or  a  county  judge  of  the  county  to  which 
the  execution  was  issued,  or  a  judge  of  the  court  of  common  pleas  for 
the  city  and  county  of  New  York,  where  the  execution  was  issued  to 
such  city  and  county,  requiring  such  judgment  debtor  to  aj>pear  and 
answer  concerning  his  property,  before  such  judge,  at  a  tinie  and  place 
specified  in  the  order,  within  the  county  to  which  the  execution  was 
issued.'  Such  order  may  be  served  by  the  sheriff,  or  by  any  other 
person,  and  must  be  made  personally  upon  the  defendant.  lie  ought 
to  be  served  sufliciently  long  before  the  time  he  is  re(iuired  to  appear 
to  allow  him  reasonable  time  to  attend  at  the  time  and  place  spe- 
cified. The  service  is  made  by  delivering  to  the  tlefendant  a  copy  of 
the  order,  and  at  the  same  time  showing  him  the  r)riginal  order  under 
the  hand  of  the  judge  or  ofllccr  granting  the  same. 

^047.  After  the  issuing  of  an  execution  against  property,  and  upon 
proof  by  aflidavit  of  a  party  or  otherwise,  to  the  satisfaction  of  the 
court,  or  a  judge  thereof,  or  county  judge,  or  any  judge  of  the  court 
of  common  pleas  for  the  city  and  county  of  New  York,  tliat  any 
judgment  debtor  residing  in  the  county  where  such  judge  or  officer 
resides,  has  property  which  he  unjustly  refuses  to  apply  towards  the 
satisfaction  of  the  judgment,  such  court  or  judge  may  by  an  order 
require  the  judgment  debtor  to  appear  at  a  specified  time  and  place  to 
answer  concerning  the  same;  and  such  proceedings  may  thereui)on  be 
had  for  the  application  of  the  property  of  the  judgment  debtor  towards 
the  satisfaction  of  the  judgment,  as  are  provided  upon  the  return  of 
an  execution.  Service  of  such  order  is  made  as  in  the  case  of  the 
preceding  order.* 

^  048.  Instead  of  the  order  requiring  the  attendance  of  the  judg- 
ment debtor,  the  judge  may,  upon  proof  by  affidavit  or  otherwise,  to 
his  satisfaction,  that  there  is  danger  of  the  debtor's  leaving  the  state, 
or  concealing  himself,  and  that  there  is  reason  to  believe  he  has  prop- 
erty which  he  unjustly  refuses  to  apply  to  such  judgment,  issue  a 
warrant  requiring  the  sherifT  of  any  county  where  such  debtor  may 
be,  to  arrest  him  and  bring  him   before  such  judge. ^     It  has  been 

1  Code,  ^292.  a  Code,  ^292.  3  Code.  ^292. 


272  spi:riAi.  ruocKF.nixns. 

lietermined  by  Mr.  Justice  VN'illanl,  ilial  such  warrant  may  he  issued 
l)y  a  justice  of  the  suprenie  CDurl  of  the  same  judicial  dislrict  ia 
which  tlie  judj^nieiit  was  rci'ovored,  though  the  dcrendanl  does  not 
reside  in  his  county.'  The  arrest  under  su»'h  warrant  must  be  made 
as  in  the  case  of  a  warrant  upon  civil  process,  and  all  the  rules  in  rela- 
tion thereto,  woidd  seem  to  bo  applicable  to  such  arrest ;  and  the 
defendant  should  be  brouijht  forthwith  before  the  judge  or  oflK'er  issuing 
such  warrant  ;  and  the  olHcer  making  the  arrest  must  retain  the  defend- 
ant in  his  custody  until  he  is  discharged  by  the  judge  or  oflicer  issuing 
the  warrant,  or  until  he  is  committed  by  such  judge  to  jail.  When  he 
is  so  committe<l  he  must  be  committed  to  the  jail  of  the  county  where 
the  proceedings  are  had  before  the  judge,  and  such  prisoner  must  be 
confined  there  until  he  is  duly  discharged,  as  prisoners  are  confined  in 
'•ascs  of  contempts.* 

.?.     rROCK.-^i^    I  \     ACTIONS    FOR    TENALTIKS. 

^  GiO.  Upon  every  process  issued  for  the  purj)Ose  of  compelling  the 
appearance  of  any  defendant  to  any  action  for  the  recovery  of  any 
penalty  or  forfeiture,  shall  be  indorsed  a  general  reference  to  the  statute 
by  which  such  action  is  given,  in  the  following  form,  "  According  to  the 
provisions  of  the  statute  regulating  the  rate  of  interest  on  money,"  or 
*'  according  to  the  provisions  of  the  statute  concerning  sherilVs,"  as  the 
case  may  require,  or  in  some  other  general  terms  referring  to  such 
statute.'  The  object  of  the  statute  is  to  give  to  the  defendant  notice 
of  the  offence  for  which  he  is  prosecuted.  And  in  a  suit  for  a  penalty 
under  the  excise  law  it  has  been  held  that  an  indorsement  of  "  accord- 
ing to  the  act  of  the  internal  j»olif'e  of  this  state,"  is  void  for  uncertainty.* 
If  therefore,  the  process  require  the  arrest  of  the  defendant,  it  becomes 
important  that  the  indorsement,  as  well  as  such  process  should  be  in  due 
form,  or  be  so  specific  in  its  character  as  to  give  to  the  defendant  an 
idea  of  the  nature  of  the  charge. 

3  050.  If  the  action  is  in  the  name  of  the  informer,  the  process 
when  served  shall  not  be  delivered  to  him  by  the  officer,  but  the  same 
shall  be  returned  to  the  court  from  which  the  same  issued.'  The  i)ro- 
cess  for  the  collection  of  a  judgment  for  a  penalty  or  fine  under  a 
statute,  where  the  same  is  in  the  name  of  the  informer,  is  to  be  exe- 
cuted like  process  in  civil  cases.  But  if  the  penalty,  or  fine,  or  any 
part  thereof  be  given  to  the  people,  unless  the  statute  jnovide  other- 
\".    '•.  the  tt(T\rfy  may  justify  breaking  open  doors,  to   make  a  levy,  or 

!  .-I  the  deliinl.iiit,  when  necessary,  after  a  demand  and  refusal.'  And 

'  n  Tlvir  rr  R  r.'y  i  17  Wcnrl.  85.  *  1  Hack.  128. 

»  3  U.  H.  481,  <^C.  D.'irh.  Cr.  L.  &J0. 

Id.  72.3,  ^0,  ilh  id. 

I'l     I-  '.  'j<.    1"!  •-••l. 


SrKClAL  PROCEEDINGS.  273 

unless  such  statute  declare  otherwise,  or  place  the  execution  upon  the 
looting  of  civil  process,  no  property  of  the  defendant  is  excinpl  from 
levy  or  distress  and  sale  on  such  execution.  Where  any  such  action 
is  in  the  name  of  the  informer,  he  has  no  right  to  settle  or  (tompro- 
mise  the  action  without  the  payment  of  the  whole  recovery,  and  if  he 
directs  the  release  of  the  defendant  from  arrest  on  the  execution,  it 
will  he  void  as  to  the  peoj)le's  moiety  of  the  jienalty,  and  the  sheritf 
will  be  liable  for  an  escape.' 

4.   ARKEST   IN     AV   ACTION   VOR   A   PENALTV    UNDER  STATUTES    RELATIVE  To 
TJIE   MANLFACTLUE    OV    ^SALT. 

^  G5I.  Any  process  by  which  the  defendant's  body  is  to  be  taken 
in  an  action  for  a  penalty  under  the  statutes  relative  to  the  manufac- 
ture of  salt,  may  be  issued  and  served  on  Sunday,  and  tiie  defendant 
held  in  custody  for  trial  until  a  reasonable  time  on  the  day  following, 
if  such  process  be  issued  by  a  justice  of  the  peace.  But  if  issued  from 
any  court  of  record,  then  the  defemiant  shall  be  detained  until  he  shall 
give  bail,  as  in  actions  where  the  defendant  is  rec[uired  to  give  bail. 
The  bail  in  such  case,  shall  be  taken  in  the  name  of  the  sheriff,  but  he 
sliall  not  be  responsible  for  the  sufficiency  of  the  bail  when  the  arrest 
is  made  by  any  person  other  than  himself,  or  his  deputies,  unless  the 
defendant  shall  have  been  actually  conmiitted  to  jail ;  in  which  case 
he  shall  be  responsible  as  in  other  cases.' 

5.    EXECUTION    OF    PROCESS    OF    JUDICIAL    OFFICERS, 

^  652.  Every  sheriff,  constable,  marshal  or  other  officer,  to  whom 
shall  be  directed  and  delivered  any  attachment,  summons,  precept  to 
summon  a  jury,  warrant  to  apprehend  a  witness  or  any  other  person, 
or  any  other  process  authorized  by  law  to  be  issued  by  a  justice  of  the 
supreme  court,  judge  of  a  county  court,  or  justice  of  the  peace,  in  any 
special  proceeding  or  matter,  before  such  judge,  commissioner  or  jus- 
tice, except  civil  suits  before  justices  of  the  peace,  shall  execute  such 
process,  as  therein  commanded,  and  for  any  wilful  neglect  so  to  d<">. 
may  be  fined  by  the  officer  issuing  the  same,  in  a  sum  not  exceedini^ 
twenty-five  dollars.^ 

^  653.  When  any  sheriff,  constable  or  other  officer,  who  shall  have 
summoned  any  jury  as  mentioned  in  the  foregoing  section,  shall 
be  required  by  the  officer  issuing  the  summons,  to  attend  such  jurv  and 
take  charge  of  them,  he  shall  be  bound  to  do  so  ;  and  for  anv  wilful 
neglect  to  obey  such  order,  or  for  any  misconduct  while  attending  such 

'  Ante,  ^586.  3  2  R.  S.  551,  ^-3. 

s  1  R.  S.  278,  ^v>154-lo6.  Id.  783,  ^3,  4th  ed. 

Id.  554,  <)«;, 2-25-227,  4th  ed. 

36 


274  SPRCIAL  PROCKEDIXr.S. 

jury,  hy  which  tho  rights  or  rcinedics  of  any  party  to  surh  proceeding 
siinll  be  itn])aireii  or  prejii<li«'e(l,  such  shcrill,  c«)nslable  or  otlier  oHicer 
shall  he  hahle  to  he  liiietl  hy  the  ofiicer  before  whom  such  jury  shall 
have  aj*|^are<i,  in  a  sum  not  exccedint;  twenty-five  dollars.' 

^  Ofvl.  l^i>on  surh  fine  being  imj>osetl,  notice  ihcreot' shall  be  given 
to  the  person  fined,  to  the  end  that  he  may  render  an  excuse  to  the 
officer  imposing  the  same,  or  show  cause  why  such  fine  should  be 
remitted.'  Il'  no  such  excuse  be  rendered,  or  causo  shown  within  thirty 
days  after  service  of  su»"h  notice,  and  such  fine  shall  not  liave  been 
remitted  by  the  ofiicer  imposing  the  same,  such  officer  shall  make  a 
8j>ecial  return  of  the  delintjuency  or  misconduct  for  which  such  fine 
was  imi>osed,  with  the  amount  thereof,  to  the  next  county  court  of  the 
county  in  which  such  delimjuent  shall  reside.*  And  the  clerk  of  the 
court  to  which  such  return  shall  be  made,  shall  deliver  a  copy  thereof 
to  the  district  attorney  of  the  county,  with  coi»ies  of  the  miiKiles  of  fines 
imposed  by  such  court,  and  in  the  same  manner  ;  which  shall  be  col- 
lected, and  may  be  remitted  or  mitigated  in  the  same  manner  as  fines 
imposed  by  courts  of  record,  upon  defaulting  jurors.* 

G.    rUOCEEDINCS  IN   CA^K.S  OF  IXSOLVKN'TS. 

^  655.  Where  any  creditor  shall  demand  of  the  court  or  officer 
before  whom  an  insolvent  is  applying  for  a  discharge  from  his  debts,  or  to 
be  discharged  from  imprisonment,  that  the  case  of  such  insolvent  be 
heard  and  determined  by  a  jury,  it  shall  be  the  duty  of  the  court  before 
which  such  hearing  is  had,  to  cause  a  jury  to  be  drawn  in  the  same 
manner  as  for  the  trial  of  civil  causes,  from  the  jurors  summoned  and 
attending  such  court.  If  such  demand  be  made  to  any  single  officer, 
he  shall  nominate  eighteen  reputable  freeholders  of  the  county,  and 
shall  issue  a  summons  to  the  sherifF  or  any  constable  of  the  county, 
commanding  him  to  cause  the  j>ersons  so  nominated,  to  appear  before 
such  officer,  at  the  time  and  j)lace  to  be  specified  in  the  summons,  not 
less  than  six  nor  more  than  twelve  days,  and  he  shall  summon  them  as 
in  the  case  of  jurors  duly  drawn  for  courts  of  record.' 

3  05(5.  Whenever  the  trustees  of  an  in.solvent  .shall  show  by  their 
own  oath  or  other  competent  i)roof,  to  the  satisfaction  of  any  justice 
of  the  supreme  court,  county  judge,  recorder  of  any  city,  and  if  in  the 
cily  of  .Schcnc<!la<ly,  the  mayor  thereof,  that  there  is  good  reason  to 
believe  that  the  debtor,  his  wile,  or  any  other  j)erson  has  concealed  or 
embezzled  any  part  of  the  estate  of  such  debtor  vested  in  the  said 

i  2R.H.M,l.</>  »  2  R.  8.  652,  <>7.  o  2  R.  8.  10,  ^(>14,  16. 

1,1   -M.  .r,    ,,,,  ,.,,  M   7KM,  <J,  4th  ctl.  M.  2<.l,  «><>!'.♦,  20,-11110(1. 

*  2  I:  «2UHrjW,<,8.  2  R.  M.  2it,  <;•*>. 

M    .  rw'l  Id.  7!^;j,  <>H,  111,  c.l.  M.  210,v0,  4Ui  0(1. 


SPECIAL  PROCRKDINGS.  275 

trustees ;  or  that  any  person  can  testify  concerning  tlie  concealment  or 
embezzlement  thereof;  or  that  any  ))er.son  who  shall  not  have  rendered 
an  account  as  required  by  statute,  is  indebted  to  such  debtor,  or  has 
property  in  his  custody  or  possession,  belonging  to  such  debtor ;  such 
officer  or  judcfe  shall  issue  a  warrant  commanding  any  sherifTor  con- 
stable to  cause  such  debtor,  his  wife  or  other  person  to  be  brought 
before  him  at  such  time  and  place  as  he  shall  appoint,  for  the  purjjose 
of  being  examined.' 

^  Of)?.  If  any  person  so  brought  before  such  officer  shall  refuse  to 
be  sworn,  or  to  answer  satisfactorily,  all  lawful  ijuestions  put  to  him, 
or  shall  refuse  to  sign  the  examination,  not  having  a  reasonable  objec- 
tion thereto,  to  be  allowed  by  such  officer,  the  said  officer  shall  by 
warrant  commit  such  person  to  prison,  there  to  remain  without  bail, 
until  he  shall  submit  to  be  sworn,  or  to  answer  as  required,  or  to  sign 
such  examination  ;  in  which  warrant  the  particular  default  of  the 
person  committed  shall  be  specified ;  and  if  it  be  in  not  answering 
any  question,  such  question  shall  also  be  specified  therein.'' 

,§  Ga8.  If  any  person  so  committed  shall  bring  a  writ  of  habeas 
corpus,  he  shall  not  be  discharged  by  reason  of  any  insufficiency  in  the 
form  of  the  warrant  of  commitment ;  but  the  court  or  officer  before 
whom  such  person  shall  be  brought,  shall  recommit  such  person,  unless 
it  shall  be  made  to  appear  that  he  hath  answered  all  lawful  questions 
put  to  him,  or  had  sufficient  reason  for  refusing  to  sign  the  exami- 
nation, as  the  case  may  be  ;  or  unless  such  person  shall  then  answer 
on  oath,  the  questions  so  put  to  him.^  . 

^  G59.  Any  sheriffi  or  jailer  wilfully  suffiiring  any  person  so  com- 
mitted or  recommitted,  pursuant  to  the  foregoing  sections,  to  escape, 
shall  be  liable  to  indictment  for  a  misdemeanor ;  and  on  conviction 
thereof,  in  addition  to  any  other  punishment  the  court  may  inflict,  shall 
forfeit  to  the  trustees  a  sum  equal  to  the  whole  amount  of  debts  due  to 
the  creditors  of  such  debtor,  not  exceeding  two  thousand  five  hundred 
dollars.* 

7.    SUMMONING    JURORS    I'NDER    A   WRIT    DE    LUNATICO    INQUIRENDO. 

^  660.  The  sherilT  to  whom  a  precept  of  the  commissioners 
appointed  to  execute  a  writ  de  lunatico  inquirendo,  or  writ  in  the 
nature  of  a  writ  de  lunatico  inquirendo,  shall  execute  the  same  by 
summoning  not  less  than  twelve,  nor  more  than  twenty-four  legally 
qualified  jurors  of  his  county,  to  appear  at  the  time  and  place  of  hear- 
ing designated  in  such  precept.  The  sheriff  himself,  selects  the  jurors, 

»  2  R.  S.  is,  ^;12.  3  2  R.  S.  44,  ^15.  *  2  R.  S.  44  UG 

,  }t  l^-'.  V^^'  '^^^'  '^''-  ^'^-  ^-'  ^1^'  ^'^  *^^'  I'J-  222,  f)i8,  4th  cd. 

*  ^  R.  S.  44,  ^14. 

Id.  222,  §10,  4th  cd. 


27<)  SPKCIAL  PROCKRDINGS. 

and  nt'itljer  the  commissioners  nor  any  one  else  have  nny  right  to  make 
out  a  list  of  jurors  t«)  he  served.  The  mode  of  service  is  the  same  as 
in  all  other  rases  where  the  sheriif  sele«'ts  the  jurf»rs.  It  must  he  per- 
sonal, and  the  otheer  should  state  tt)  e:ieh  one  served,  the  lime  and 
place  at  which  he  is  recjuired  to  ntlend,  and  the  purpose  for  which  he 
is  so  recpiired  to  attend,  and  they  shouM  he  summoned  a  reasonable  time 
before  the  day  of  hearinp.  The  sherift'  must  insert  the  names  of  the 
jurors  so  summoned  hy  him,  in  a  panel,  and  annex  it  to  the  precept, 
and  make  return  upon  the  preccjil  of  the  manner  in  which  he  executed 
the  same.  The  sherifl*  may,  at  the  time  of  the  hearing,  be  required 
hy  the  commissioners  to  attend  ujton  the  jury,  an<l  to  cruard  the  room 
in  which  they  deliberate,  iVom  intrusion.  I)ut  it  will  be  irregular  if  he  is 
present  with  them  when  they  deliberate.' 

8.    SIMMOMNG    JLROR.-<    1\     PLANK     HOAD    CASEd. 

^  GGl.  When  a  jury  shall  be  necessary  to  ascertain  the  compensation 
and  damages  to  the  owner  thereof,  where  land  is  taken  for  a  plank  road, 
the  county  judge  of  the  county,  before  whom  the  proceeding  is  had, 
shall  issue  his  precept  directed  to  the  sheriif  of  such  county,  either  of 
his  deputies,  or  any  constable  of  such  county,  to  summon  the  jurors 
drawn  by  the  said  judge,  to  attend  at  the  time  and  place  therein  speci- 
fied, to  ascertain  such  compensation  and  damages.  Every  juror  named 
in  any  such  precept,  shall,  at  least  four  days  before  the  day  therein 
S[»ecified  for  his  attendance,  be  summoned  personally,  or  hy  leaving  at 
his  residence  a  notice  containing  the  substance  of  such  precejit.  The 
officer  serving  such  precept,  shall  return  it  to  the  said  judge,  with  an 
affidavit  of  the  manner  of  serving  the  same,  and  of  the  distance  neces- 
sarily travelled  by  him  for  that  purpose  ;  and  such  ofl'icer  shall  receive 
for  making  such  service,  six  cents  a  mile  for  the  distance  so  travelled." 

0.    WARRANT    FOR    TIIK    DKLIVF.RV    OF    OFFUIAI-    IIOOK.S    A\U    PAPERS. 

^  00*2.  Where  an  ofllcer  whose  term  of  office  has  expired,  or  who 
has  been  removed  therefrom,  refuses  to  deliver  over  the  books  and 
))apcrs  pertaininir  to  the  office,  to  his  successor,  or  the  ollicer  dies,  and 
such  books  and  jjapers  come  into  the  possession  of  any  other  person, 
who  refuses  to  give  them  up  to  the  successor  in  office,  a  justice  of  the 
laprcme  court,  or  the  county  judge  of  the  county  where  such  person 
to  refusing  resides,  on  proper  [)roof  of  such  refusal,  shall  commit  such 
person  so  withholding,  to  the  jail  of  the  comity,  there  to  remain,  until 
he  shall  deliver  such  bor»ks  and  papers  or  be  otherwise  discharged 
according  to  law.     And    such   ofliccr  may  also  deliver  his   warrant 

I  2  Huff.  Ch.  Pr.  2W.  !>  1  U   H.  llCKi,  ^^W),  81.  4tb  cd. 

LnwiilM7,ch.  210,^^16,17. 


SPECIAL  PROCEEDINGS.  '^77 

directed  to  any  slierill"  or  constable,  romtnandinj^  liini  in  the  day  time 
to  search  such  i>Iace.s  as  shall  he  desi;L,'nated  in  such  warrant  for  such 
books  and  i)a])ers,  and  to  seize  and  bring  them  before  the  oHicer  issuing 
the  writ.'  The  duties  of  the  officer  under  such  search  warrant  will  be 
the  same  as  under  search  warrants  for  stolen  or  embezzled  property. 
The  warrant  will  authorize  the  olficer  to  break  open  any  outer  or  inner 
doors  necessary  to  execute  the  warrant,  upon  a  demand  that  they  be 
opened,  and  refusal.' 

10.    WARllANT    To    DI:LIVI:R    rOSSESt^ION    OF    CANAL    PREMISE!?,    BOOK.S  AND 

PAriORS. 

^  6G3.  It  shall  be  the  duty  of  every  agent,  toll  colle<-tor,  lock-keeper 
or  superintendent  employed  on  any  canal  and  occupying  any  house, 
office,  building  or  land  belonging  thereto,  who  shall  be  discharged  from 
his  employment ;  and  of  the  wife  and  family  of  every  such  person,  who 
shall  die  in  such  employment,  to  deliver  up  the  premises  so  occupied 
and  of  all  books,  papers,  matters  or  things  belonging  to  the  canals, 
actpiired  by  virtue  of  his  olfice,  within  seven  days  after  a  notice  shall 
have  been  served  for  that  purpose,  by  the  acting  canal  commissioner. 
And  in  case  of  refusal  or  neglect  to  make  such  delivery,  in  either  of 
the  above  cases,  it  shall  be  the  duty  of  any  justice  of  the  peace,  in  the 
county  where  such  premises  shall  be  situated,  upon  application,  to  issue 
his  warrant  under  his  hand  and  seal,  ordering  any  constable  or  other 
peace  officer,  with  such  assistance  as  may  be  necessary,  to  enter  upon 
the  premises  so  occupied,  in  the  day  time,  and  remove  therefrom  all 
persons  found  in  possession  thereof,  and  to  take  into  his  custody  all 
books,  papers,  matters  and  things  there  found,  belonging  to  the  canals, 
and  to  deliver  the  same  to  the  acting  canal  commissioner,  or  his  author- 
ized agent ;  and  the  officer  to  whom  such  warrant  shall  be  delivered, 
shall  execute  the  same  according  to  its  purport.^  The  duties  of  the 
officer  under  such  process  will  be  similar  to  those  of  the  sheriff  under 
a  writ  .of  possession,*  and  under  the  warrant  for  the  delivery  of 
official  books  and  pajiers  in  other  cases.' 

11.    FORCini.E    ENTRIES     AND    DETAINERS. 

* 

^  6G  t.  Every  justice  of  the  supreme  court,  county  judge,  mayor, 
recorder,  alderman  of  any  city,  any  special  justice,  any  justice  of  the 
marine  court,  and  any  justice  of  the  justice's  court  of  the  city  of  New 
York,  in  their  respective  cities  and  counties,  are  declared  to  possess 
the  like  power  and  authority,  respecting  forcible  entries  and  detainers.* 

»  1  R.  S.  124,  (^^50-56.  3  i  R.  s.  240,  «:/;183,  184.        s  Ante,  f)6C2. 

Id.  335,  ^^60-GG,  4th  ed.         Id.  517,  <)<)2i<l,  288,  4tb  ed.  «  2  R.  S.  507.  %l,  &c. 
»  Ante,  ^79,  &c.  *  Ante,  ^$554,  &c.  Id.  752,  (fy'l,  &c. 


278  spRCiAi,  rRoci:i:nixcs. 

Oj{  005.  On  romplainl  to  niiy  such  t>nicer,  that  any  one  has  forcibly 
entered  upon,  or  holds  the  possession  of  any  lands  by  force,  contrary 
to  the  statute,  he  shall  thereupon  issue  a  precept  to  the  sherilV  or  any 
constable  of  the  rountv,  coniinandintj  him  to  cause  twenty-four  inhab- 
itants of  the  same  county,  duly  (jualilied  to  serve  as  jurc»rs,  to  come 
before  such  judge,  at  sonic  lime  not  less  than  two  days  thereafter,  to 
incpiire  of  such  forcible  entry,  or  such  forcible  holding.' 

^3  000.  The  jurors  must  be  notified  personally,  at  least  twenty-four 
hours  before  the  time  HMpiired  for  the  hearinir.''and  ihcy  shall  be  sum- 
moned, returned  and  impannelled  in  the  same  manner  as  provided  by 
law  in  civil  actions  before  justices  of  the  peace,  and  shall  be  sworn  by 
such  judi^e,  well  and  truly  to  hear,  try  and  determine  the  traverse  ; 
they  shall  be  kept  together  by  such  judge,  and  shall  hear  and  examine 
anv  competent  witnesses  who  may  l»e  oflered,  on  oath,  to  be  adminis- 
tered bv  su«-h  judge  ;  and  after  hearing  the  allegations  and  proofs  of 
the  parties,  the  jury  shall  be  kept  together  until  they  agree  on  a  verdict, 
bv  an  otBcer  who  shall  be  sworn,  as  is  usual  on  trials  in  courts  of 
record.^ 

^  667.  If  the  sheriff  or  constable  be  required  by  the  county  judge 
issuing  such  precept,  to  serve  the  notice  required  by  the  statute  to  be 
served,  of  the  issuing  of  such  precept,  and  of  the  time  and  place  of  the 
return  thereof,  on  the  party  against  whom  the  complaint  is  made,  he 
shall  do  so,  by  delivering  the  same  to  such  person  ;  or  if  he  cannot  be 
found  by  delivering  such  notice  to  some  person  of  proper  age  on  the 
premises ;  or  if  there  be  no  such  person,  by  affixing  the  same  on  the 
front  door  of  the  house,  if  there  be  one  ;  or  if  there  be  none,  on  some 
other  public  and  suitable  place  on  the  premises.* 

5  608.  If  the  jury  shall  find  the  defendant  guilty,  the  said  judge  shall 
award  restitution  of  the  premises  so  forcibly  entered,  or  forcibly  held 
out,  and  shall  assess  the  costs  and  expenses  of  the  proceedings,  and 
issue  his  ])recept  reciting  the  proceedings  before  him,  and  commanding 
the  sheriff  of  the  county,  or  any  constable  thereof,  to  cause  the  com- 
jilainant  to  be  restored  and  put  into  full  possession  of  the  said  premises, 
according  as  he  was  seized  or  possessed  thereof  bbfore  such  entry  ; 
and  shall  also  in  the  same  i)recept,  or  in  separate  execution,  direct  the 
costs  and  expen.ses  so  assessed,  to  be  levied  and  collected  of  the  defend- 
ant, in  the  same  manner  as  costs  are  or  may  be  collected  on  judg- 
ments licfore  justices  of  the  peace  in  ])ersonal  actions.'  The  shcrifV 
or  constable  to  whom  any  such  process  issued  by  such  officer,  shall  be 

'2R  »  2  R.  H.  509,  (p.  »  2  R.  H.  500,  ^(;12,  IH,  M. 

M    .  ■    i  i-«l.  M.  75:5,  ^y,  4th  cd.  Id.  753,  %1'2,13,  ll.-lih  cd. 

«  2  R.  s.  :,u.,  <,\c..  4  <j  II.  s.  r,OH,  (^4. 

Id.  754,  ^10*4tlic<l.  Id.  752,  ^4,  4th  cd. 


SPECIAL   rROCHi:i)IN(JS.  279 

(liieclecJ   and  delivered,  sliall  execute  llio  saiii(>,  ;in(i  if  need  be,  sliuil 
command  and  take  the  power  of  the  county  for  that  |»urj>o.sc.' 

g  GV)9.  Upon  a  removal  ol'  such  proceedings  by  certiorari,  llie 
supreme  court  may  award  restitution,  with  costs.  And  so  upf)n  the 
conviction  of  a  del'cndunt  upon  any  indictment  for  forcible  entry  or 
forcibio  detainer  found  in  any  court  of  sessions  or  in  any  court  of  oyer 
and  terminer,  such  court  may  award  restitution  in  the  same  manner  as 
a  judge  upon  a  verdict  rendered  as  herein  before  mentioned.' 

r-2.    SL'.MMARV    rnOCEEDINGS    TO    OUTAIX    POSSESSION    OF    LANDS. 

^  G70.  Any  tenant  or  lessee  at  will,  or  at  sufferance,  for  any  j)art  of 
a  year,  or  for  one  or  more  years,  of  any  houses,  lands,  or  tenements, 
and  the  assigns,  under  tenants,  or  legal  representatives,  of  such  tenant 
or  lessee,  may  be  removed  from  such  premises,  by  any  judge  of  the 
county  courts  of  the  county,  or  by  any  justice  of  the  peace  of  the  city 
or  town  where  the  premises  are  situated,  or  by  any  mayor  or  recorder 
of  the  city  where  such  premises  are  situated,  or  in  the  city  of  New 
York,  by  the  mayor,  recorder,  any  justice  of  the  marine  court,  or  any 
one  of  the  justices  of  the  justice's  courts  of  the  city  of  New  York,  in 
the  manner  hereafter  prescribed,  in  the  following  cases  : 

1.  Where  such  person  shall  hold  over  and  continue  in  possession  of 
the  demised  premises,  or  any  part  thereof,  after  the  expiration  of  his 
term,  without  the  permission  of  the  landlord : 

2.  Where  such  person  shall  hold  over  without  such  permission  as 
aforesaid,  after  any  default  in  the  payment  of  rent,  pursuant  to  the 
agreement  under  which  such  premises  are  held,  and  a  demand  of  such 
rent  shall  have  been  made,  or  three  days  notice  in  writing,  requiring 
the  payment  of  such  rent,  or  the  possession  of  the  premises,  shall  have 
been  served  by  the  person  entitled  to  such  rent,  on  the  person  owing 
the  same,  in  the  manner  prescribed  for  the  service  of  the  summons  as 
hereinafter  mentioned  : 

3.  Where  the  tenant  or  lessee  of  a  term  of  tiiree  years,  or  less,  shall 
have  taken  the  benefit  of  any  insolvent  act,  or  been  discharged  under 
any  act  for  the  relief  of  his  person  from  imprisonment  during  such 
term  : 

4.  Where  any  person  shall  hold  over  and  continue  in  possession  of 
any  real  estate  which  shall  have  been  sold  by  virtue  of  an  execution 
against  such  person,  after  a  title  under  such  sale  shall  have  been  per- 
fected.^ 

^  071.  On  receiving  a  proper  affidavit  of  the  facts  which  according 

>  2  R.  S.  510,  <>15.  2  2  R.  S.  511,  ^^2-2,  23.  3  o  R.  S.  513,  ^28. 

Id.  754,  §15,  4th  cd.  Id.  755,  %'22,  23,  4th  cd.        M.  75fi,  (/28,  4th  cd. 

Laws  1849,  ch.  103,  <>1. 


280  srnriAL  riiocKKDixiis. 

to  the  ureredinq  section  nuil»«>ii/.e  the  removal  of  a  tenant,  such  otlicer 
shall  issue  his  summons,  describing  the  premises  of  which  the  jiosses- 
sion  is  claimed,  and  re(|uiring  any  person  in  the  possession  of  said 
premises,  or  claiming  the  possession  thereof,  forthwith  to  remove  from 
the  same,  or  show  cause  before  the  said  magistrate,  within  such  time 
as  shall  appear  reasonable,  not  less  than  three  nor  more  than  five  days, 
why  possession  of  said  premises  should  not  be  delivereil  to  such  appli- 
cant; provi<led,  however,  that  in  the  cases  where  a  jievson  continues 
in  the  possession  ctf  the  demised  premises,  after  the  expiration  of  his 
term,  without  jtermission  of  his  landlord,  the  magistrate  may  direct 
such  summons  to  be  made  returnable  on  the  same  day.' 
J  672.  The  summons  shall  be  served,  either, 

1.  By  delivering  to  the  tenant  to  whom  it  shall  be  directed,  a  true 
copy  thereof,  and  at  the  same  time  showing  him  the  original :  or, 

2.  If  such  tenant  be  absent  from  his  last  or  usual  place  of  residence, 
by  leaving  a  copy  thereof  at  such  place,  with  some  person  of  mature 
age,  residing  on  the  premises.*  A  return  of  the  service  of  the  sum- 
mons, must  show  the  manner  of  service,  and  where  it  is  not  personal, 
it  must  show  that  the  service  was  made  as  prescribed  ;  and  a  simple 
return  that  the  defendant  was  absent  and  that  the  summons  was  served 
on  R.  residing  on  the  demised  premises,  has  been  lield  insull'icient. 
The  court  say  the  return  must  show  that  the  party  was  absent  from 
his  last  or  usual  place  of  residence,  and  that  the  summons  was  left 
at  such  place,  with  some  person  of  mature  age,  ros-iding  on  the  prem- 
ises.' 

3  <»73.  Any  i>erson  in  possession  of  such  demised  |)remises,  and  any 
person  claiming  possession  thereof,  may  at  the  time  ajipointed  iu  such 
summons,  for  showing  cause,  or  before,  file  an  atlidavit  with  the  magis- 
trate who  issued  the  same,  denying  the  facts  upon  which  the  said 
summons  was  issued,  or  any  r»f  those  facts  ;  and  the  matters  thus 
controverted  shall  be  tried  by  a  jury,  jirovidcd  either  jxuty  to  such 
proceeding  shall,  at  the  time  api)ointed  in  such  sununons  fnr  showing 
cause,  (and  before  adjournment,)  demand  such  jury,  and  shall,  at  the 
lime  of  such  demanil,  pay  the  necessary  costs  and  expenses  of  obtaining 
such  jury.* 

3  C7  1.  In  order  to  form  such  jury,  the  magistrate  with  whom  such 
nflidavit  .shall  be  filed,  shall  nominate  twelve  reputable  persons,  qualified 
to  serve  as  jurors  in  courts  of  record,  and  shall  issue  his  jtreccpt, 
directed  lo  the  sherilf,  or  one  of  the  constables  of  the  county,  or  any 
constable  or  marshal  of  the  city  or  town,  commanding  him  to  summon 

I  2  R.  8.  613,  9K).  «  2  K   S  r.M,  ^.32.  «  2  U.  S.  5U,  yJI. 

M.  767,  <^iV>,  -Itlj  .  <I.  M.  7''.7,  (,H2,  Mx  cd.  M.  757,  ^.'{4,  hh  r«l. 

Laws  Ibtl,  cli.  HA),  (^l.        »  1  Hilt,  612.  Laws  IbVJ,  cli.  193,  <)Z 


SPECIAL  PROCEEDINGS.  281 

the  persons  so  nominated  to  appear  before  such  magistrate  at  sin-li 
time  and  i)Iace  as  lie  shall  therein  appoint,  not  more  than  three  days 
from  the  date  thereof,  for  the  purpose  of  trying  the  said  matters  in 
diflerencc.'  If  more  than  the  prescribed  number  of  jurors  are  sum- 
moned, the  i)r(»ceedings  will  be  reversed.' 

^  075.  8ix  of  the  persons  so  summoned,  shall  be  drawn  in  like 
manner  as  jurors  in  justice's  courts,  and  shall  be  sworn  by  such  m.agis- 
trate,  well  and  truly  to  hear,  liy  and  determine  the  matters  in  diflerence 
between  the  jiartiet^.^ 

<5  070.  After  hearing  the  proofs  and  alle'gations  of  the  i>artics,  the 
said  jury  shall  be  kept  toT;'elhcr  until  they  agree  on  their  verdict,  by 
the  sherifT  or  one  of  his  deputies,  or  a  constable,  or  by  some  proper 
person  appointed  by  the  magistrate  f>r  that  purjiose,  who  shall  be 
sworn  to  keep  such  jury  as  is  usual  in  like  rases  in  courts  of  record. ^ 

3  677.  If,  at  the  time  a])pointed  in  th(?  summons,  no  sutTicient  cause 
be  shown  to  the  contrary,  and  due  proof  of  the  service  of  such  summons 
bo  made  to  such  magistrate  ;  or  if  the  vei'dict  of  any  jury  so  summoned, 
shall  be  in  favor  of  the  lessor  or  landlord,  or  other  person  claimin"'  the 
possession  of  the  premises,  the  magistrate  shall  issue  his  warrant  to  the 
sheritTof  the  county,  or  to  any  constable  or  marshal  of  the  city  or  town 
where  the  premises  are  situated,  commanding  such  oflicer  to  put  such 
landlord,  lessor  or  other  person  into  full  possession  of  the  premises  ;  and 
the  ofTiccr  to  whom  such  warrant  is  delivered,  shall  execute  the  same 
accordingly.^  Under  such  warrant  the  oflicer  shall  have  the  same 
powers  as  on  the  execution  of  a  writ  of  possession.'' 

13.      COLLKCTIOX  OF  FIXES. 

5  G78.  When  any  grand  or  petit  juror  shall  have  been  summoned 
to  attend  any  court,  by  leaving  a  notice  in  writing  at  his  place  of  resi- 
dence, the  court  shall  suspend  the  imposing  of  a  fine  for  his  default  in 
not  attending  pursuant  to  such  summons,  until  the  next  term  or  sittinfr 
thereof;  and  shall  cause  an  order  to  be  entered  in  the  minutes  of  the 
court,  that  the  defaulting  juror  show  cause  on  the  first  day  of  the  then 
next  term  of  said  court,  why  a  fine  should  not  be  imposed  on  him  ; 
and  the  clerk  of  the  court  by  which  such  order  shall  be  made,  shall 
immediately  deliver  to  the  sheriff  of  the  county  a  copy  of  every  such 
order,  and  such  sheritT  shall  serve  such  order  on  the  defaulting  juror 
named  therein  personally  ;  and  shall  return  such  order,  and  his  pro- 

•  2  R.  S.  514,  (^.35.  3  2  R.  S.  514,  ^36.  '     5  2  R.  S.  514,  <fySS,  30,  40. 

Id.  757,  ()35,  4th  cd.  Id.  758,  ^36,  4th  cd.  Id.  757,  w\33.  &c.  4th  ed. 

Laws  1849,  ch.  193,  §2.  Law.s  1849,  ch.  193,  ^4.        «  Ante,  (■,r.54     ' 

^  20  Wend.  207.  <  2  R.  S.  514,  ^37. 

Id.  758,  ^37,  4th  ed. 

37 


282  ~  spKciAL  rK()('i:i:nrxr;s. 

Ceedings  thereon,  to  the  oourl  uiiil  :il  tin*  lime  at  which  mu  h  juror 
shall  be  requireii  lo  sliow  rause.' 

^  ($71).  When  a  fine  shall  l)e  imposed  hy  any  court  of  hiw  u))on 
any  ijrand  or  petit  juror,  or  upon  any  eonstahU',  lor  non-attendan<'C, 
or  for  any  other  f.iuse,  or  upon  any  ollicer  of  such  court,  or  upon  any 
other  |>erson.  without  being  accompanied  by  an  order  for  the  immediate 
commit ment  of  the  person  so  fined  until  such  fine  be  paid,  it  shall  be 
the  duty  of  the  clerk  of  such  court  inunedialcly  to  deliver  a  copy  of 
the  onler  imposing  such  fine,  to  the  district  attorney  of  the  county  in 
which  such  court  shall  IxTsilting." 

<3  080.  The  distri<n  attorney  shall  immediately  after  the  adjourn- 
ment of  such  court,  issue  process  under  the  seal  of  the  county  court 
of  the  county,  to  the  sheriff  thereof,  commanding  him  to  collect  of 
the  several  persons  name<l  in  the  schedule  annexed  to  such  process, 
the  several  sums  alllxed  to  their  names  respectively,  in  such  schedide, 
and  to  pay  over  the  same  to  the  treasurer  of  the  county  ;  and  that  at 
the  time  of  collecting  the  same,  he  notify  such  persons  respectively, 
that  if  they  have  sullicient  matter  to  show  for  remitting  such  fines, 
they  may  show  the  same  to  the  county  court  of  the  county  on  the  first 
day  of  the  next  term  thereof.' 

3  OHl.  To  such  j)rocess  shall  be  annexed  a  schedule,  containing  in 
separate  columns, 

1.   The  names  of  the  persons  fined: 

ii.  Tlieir  respective  places  of  residence : 

3.  The  amount  of  the  fine  imposed  on  each:  and 

4.  The  cause  of  such  fine  being  imposed  : 

Which  schedule  shall  be  certified  by  the  district  attorney  lo  contain 
a  true  abstract  of  the  orders  imposing  such  fines,  delivered  to  him  by 
the  clerk.* 

§  082.  The  sherill"  to  whom  such  process  shall  be  directed  and 
delivered,  shall  proceed  to  collect  the  amount  of  such  fines  respectively, 
of  the  several  j»ersons  named  in  such  schedule,  by  a  levy  and  sale  of 
the  i)er.sonal  proj)erty  of  such  persons,  in  the  manner  provided  by  law, 
in  the  service  of  executions  against  property  in  civil  cases,  and  shall 
\)e  entitled  to  collect  the  same  fees  ;  and  in  case  sullicient  jiersonal 
projMTty  cannot  be  found  to  raise  such  amount,  such  sheriH'  shall  take 
the  body  of  the  |)erson  named  in  such  schedule,  ami  detain  him  in 
custody,  until  he  shall  satisfy  the  same,  in  the  same  manner  as  on 
executions  ag.ainst  the  body  in  civil  cases,  and  shall  be  entitled  for  his 
services  to  the  like  fees.'     And  he  shall  return  the  process  at  the  then 

I  2R   f    l"'^  '/,K>1''  '2n  H    181,  (,23.  »  2  U.  S.  485,  ^2^.. 

Ill  I7,4lhc(l  I  I     Itli  «<1.  M.  720.  ^23,  nil  c(l. 

» 2  H  ♦ :;  I  J  I. 

M.  .^.     J'    Ubed.  1-1  .— ,  *,-J, -Ith  cd. 


SPECIAL  PROCEEDINGS.  283 

next  term  of  the  county  court  of  his  county,  after  such  dcHvery,  with 
his  [x-ocec(lint,'s  thereon  ;  and  such  return  may  be  compelieil  in  the 
same  manner  as  civil  process.* 

^  083.  After  the  expiration  of  ten  days  after  the  day  ap|)ointed  for 
the  hearing  excuses  of  defaulting  jurors  in  the  city  of  New  York,  the 
commissioner  of  jurors  of  said  city  shall  issue  a  warrant  directed  to 
the  sheriir  of  the  said  city  and  county,  commanding  him  to  collect  of 
the  several  persons  named  in  the  schedule,  to  be  annexed  to  such 
Warrant,  the  several  sums  allixed  to  their  names  res])cctively  in  siich 
schedule,  and  jiay  over  the  same  to  the  treasurer  of  the  county.  The 
said  schedule  shall  contain  the  names  of  the  jurors  fined,  the  resj)ective 
places  of  residence  and  the  amount  of  fines  imposed  on  each.  The 
said  sheriff  shall  proceed  to  collect  the  amount  of  such  fines  respect- 
ively of  the  several  persons  named  in  such  schedule,  by  a  levy  and 
sale  of  such  personal  property  of  such  person^-,  in  the  manner  provided 
by  law  on  the  service  of  executions  in  civil  cases,  and  shall  be  entitled 
to  collect  the  same  fees  ;  and  the  said  sheriff  shall  return  the  said 
warrant,  with  his  proceedings  thereon,  to  the  said  commissioner,  within 
thirty  days  after  the  delivery  thereof  to  him,  and  such  return  may  be 
enforced  in  the  supreme  court  in  the  same  manner  as  the  return  of 
civil  process  ;  and  such  warrant  may  be  renewed  in  like  manner  in 
cases  where  fees  have  not  been  paid  or  collected.'* 

§  684.  The  president  of  courts  of  inquiry  and  courts  martial,  for  the 
trial  of  officers,  shall  issue  his  warrant  for  the  collection  of  all  fines 
imposed  by  said  court,  directed  to  the  sheriff  of  the  county  in  which 
such  court  was  held,  (or  in  which  the  delinquent  resides,)  whose  duty 
it  shall  be  to  collect  such  fines  in  the  same  manner  as  he  is  authorized 
to  collect  any  debt  upon  civil  process,  together  with  lawful  costs,  and 
the  amount  of  fine,  to  be  paid  to  the  state  treasury.^ 

^  085.  Regimental  and  battalion  courts  martial,  after  the  time  of 
appeal  shall  have  expired,  shall  issue  a  warrant  for  the  collection  of  all 
fines  imposed  by  said  court,  directed  to  the  sheriff  or  any  constable  of 
the  county  in  which  the  court  was  held,  and  in  which  the  delinquent 
resides,  whose  duty  it  shall  be  to  collect  such  fines  in  the  same  manner 
as  he  is  authorized  to  collect  any  debt  upon  civil  process,  together  with 
lawful  costs,  and  the  amount  of  the  fine  to  be  paid  to  the  county  treas- 
urer of  the  county  within  which  the  othcer  constituting  the  court  may 
reside,  and  shall  belong  to  the  military  fund  of  such  regiment.* 

^  086.  The  president  of  any  court  martial  held  under  the  statute 
relative  to  the  first  division  and  fifth  brigade,  shall  issue  his  warrant  for 
the  collection  of  all  fines  imposed  by  said  court,  directed  to  the  sheriff 

'  2  R.  S.  486,  ^26.  2  2  R.  S.  658,  ^19.  3  Laws  1854,  p.  1056,  $15. 

Id.  726,  <j24,  4th  cd.  Laws  1847,  cb.  495,  $6.        *  L.aws  1S54,  p.  1058,  ^$27, 29 


284  SnX'lAL   PUOCI'.KDINCS. 

of  the  county  in  which  the  court  was  hcM,  or  in  which  the  delinquent 
resitlcs.  whose  (hity  it  ^^halI  be  to  ct»llect  such  fines  in  the  same  niu>"ier 
as  he  is  authori/.td  to  collect  any  «lelit  ui><in  «'ivil  process,  together  with 
lawful  costs  ;  return  shall  be  mndc  by  the  sherilT  to  such  president,  or  the 
comniantlant  of  the  brigade  or  ili\  ision,  and  the  ofl'i<'er  to  whom  return 
may  be  n>adc.  shall  pay  the  amount  collected,  to  the  county  treasurer.' 

<5  087.  No  |>crson  .-hall  be  imprisoned  for  the  non-payment  of  any 
fineor  comnujtation  siuu  provided  by  the  act  of  ISf)!,  for  the  enlistment 
of  the  militia;  but  no  projuMty  of  the  party  fined,  now  cxemi>t  from 
execution,  shall  be  so  exempt  from  the  payment  of  his  fine.'' 

<5  (^Sf^.  Each  officer  to  whom  a  warrant  for  the  collection  of  fines 
may  be  directed,  shall  be  entitled  to  the  same  fees,  and  be  subject  to 
the  same  penalties  for  nejzlect,  as  are  allowed  ami  jtrovidcd  for  on 
executions  issued  out  of  justice's  courts.' 

^  089.  If  any  officer  having  a  warrant  for  the  collection  of  any  fine 
shall  not  be  able  to  collect  the  fines  within  the  limes  specified  therein, 
the  officer  issuing  the  warrant,  may  at  any  time  thereafter,  within  two 
years  from  the  time  of  imposing  the  fines,  issue  a  new  warrant  against 
anv  delintjuent,  or  renew  the  former  warrant  from  time  to  time,  as 
mav  become  necessary  ;  and  all  such  warrants  may  be  renewed  in 
the  same  manner  that  executions  issued  from  justice's  courts  may  be 
renew'ed.* 

5  090.  Every  collector  or  receiver  of  taxes  of  any  town  or  wartb 
and  every  constable,  marshal,  or  sherill',  and  every  commissioned  oilicer, 
who  shall  refuse  or  neglect  to  pay  over  to  the  county  treasurer  of  the 
county  in  which  he  shall  reside,  any  military  fines  or  commutation 
received  by  him,  shall  be  deemed  guilty  of  a  misdemeanor." 

11.    COINTV    TKt:.\SMli;irs    W.MtK.WT    AGAINST    COLLECTORS. 

5  091.  If  any  collector  shall  refuse  or  neglect  to  pay  to  the  several 
town  oflicers  of  his  town,  or  to  the  county  treasurer,  the  sums  required 
by  his  warrant  to  be  jiaid  to  them  respectively,  or  either  of  them,  or  to 
account  for  the  same  as  unpaid,  the  county  treasurer  shall,  within 
twenty  days  after  the  time  when  such  payments  ought  to  have  been 
made,  issue  a  warrant  under  his  hand  and  seal,  directed  to  the  sherilT 
of  the  county,  commanding  him  to  levy  such  sum  as  shall  remain 
un[*nid  and  una«;coiuited  for  by  such  collector,  of  the  goods  and  chattels, 
lands  and  tenements  of  such  collector,  and  to  pay  the  same  to  the 
county  treasurer,  and  return  such  warrant  within  forty  days  after  the 
date  thereof:  which  warrant   the  county  treasurer  shall  immediately 

'  Lawn  IH.'il,  p.  107m,  Um.       j  Uwb  IWil,   p.    1058,  ^28,  «  1  It.  S.  r,22,  ^2/>,  4lh  cd. 
a  L.-iHH  lh64,  p   107^,  (40  Mil..  3.  Laws  Ibl'J,  ch.  307,  ^7. 

«  Laws  1801,  p.  10C3,^^8,M. 


SPECIAL  rUUCElCDlNGS.  285 

deliver  to  the  slicrifl'  of  the  c.ouiily  ;  but  no  such  warrant  shall  be 
issued  by  the  county  treasurer  for  the  (•ollection  of  moneys  i»ayab!e  lo 
town  oflicers,  without  j)roof,  by  the  oath  of  such  town  ollicers,  of  the 
refusal  or  negiet-t  of  the  collector  to  pay  the  same,  or  account  therefor, 
as  above  provided.' 

^  CO'i.  The  sherifl"  to  whom  such  warrant  is  directed,  shall  immedi- 
ately cause  the  same  to  be  executed,  and  shall  make  return  thereof  to 
the  county  treasurer,  within  the  time  therein  specified,  and  shall  pay 
to  him  the  moneys  levied  by  virtue  thereof,  deducting  for  his  fees  the 
same  compensation  that  the  collector  would  have  been  entitled  to 
retain.  Such  part  of  the  moneys  collected;  if  any,  as  ought  to  have 
been  paid  by  the  collector  to  town  oflicers,  shall  be  paid  by  the  county 
treasurer,  to  the  officers  to  whom  the  collector  was  directed  to  pay 
the  same ;  but  if  the  whole  amount  of  moneys  due  from  the  collector 
shall  not  be  collected  in  such  warrant,  the  county  treasurer  shall  first 
retain  the  amount  which  ought  to  have  been  paid  to  him,  before 
making  any  payment  to  the  town  oflicers.^ 

§  G93.  If  the  whole  sum  due  from  the  collector  shall  be  collected, 
the  sherifl"  shall  so  state  in  his  return;  but  if  a  part  only,  or  if  no  part 
of  such  sum  shall  be  collected,  the  sherifl'  shall  state  in  his  return  the 
amount  levied,  if  any,  exclusive  of  his  fees,  and  shall  also  certify  that 
such  collector  has  no  goods  or  chattels,  lands  or  tenements,  in  his 
county,  from  which  the  moneys  or  the  residue  thereof,  as  the  case  may 
be,  could  be  levied  ;  and  in  either  case,  the  county  treasurer  shall 
forthwith  give  notice  to  the  su])ervisor  of  the  town  or  ward,  of  the 
amount  due  from  such  collector.^ 

g  694.  If  any  sherifl' shall  neglect  to  return  any  such  warrant,  or  to 
pay  the  money  levied  thereon,  within  the  time  limited  for  the  return 
of  such  warrant ;  or  shall  make  any  other  return  than  such  as  above 
mentioned,  the  county  treasurer  shall  forthwith  j)roceed  to  collect  by 
attachment,  the  whole  sum  directed  to  be  levied  by  such  warrant/ 
Sucii  proceeding  by  attachment  shati  be  in  the  supreme  court,  in  the 
same  manner  and  with  the  like  effect,  as  for  neglecting  to  return  any 
execution  in  a  civil  suit ;  and  the  proceedings  thereon  shall  be  the 
same  in  all  respect?.'  In  case  of  failure  to  collect  by  attachment,  the 
attorney  general  shall  proceed  upon  the  sherifl"s  bond.* 

15.    WARRANTS    TO    COLLECT    LXPAID    TAXES. 

^  695.  When  it  shall  apj^ear  by  the  return  of  any  collector,  made 
according  to  law,  to  a  county  treasurer,  that  any  tax  imposed  under 

»  1  R.  S.  400,  ^13.  s  1  R.  S.  400,  ^15.  s  2  R.  S.  556,  $32. 

Id.  727,  \>'25,  4th  cd.       Id.  727,  \)27,  4th  ed.  Id.  786,  (>32,  4th  cd. 

SIR.  S.  400,  <5»14.  MRS.  401,  (>17.  »  1  R.  S.  4Ul.  <>K<. 

Id.  727,  <)26,  4th  ed.      Id.  727,  ^)2y,  4th  ed.  Id.  728,  ()?A,  4th  cd. 


286  spKriAL  Piiocr.EniN(;s. 

ihe  provisions  of  the  act  ronreriiing  taxes  upon  rents  reserved  on  certain 
leases,  remains  unpaiil,  such  rounly  treasurer  shall  issue  his  warrant  to 
the  slieritV  of  any  c<»unty  where  any  real  or  jK'rsonal  estate  <"»f  the 
person  u|H)n  whom  surh  tax  is  imposed,  may  he  found,  rommanding 
him  lo  make  of  the  ^<Kids  and  chattels,  ami  real  estate  of  such  person, 
the  amiiunt  of  such  tax,  tom-ther  with  «>ne  dollar  for  the  exj>ense  of 
itsuing  surh  warrant,  and  to  return  the  said  warrant  to  the  treasurer 
issuing  the  sanie,  and  to  pay  to  him  the  money  which  shall  be  collected 
by  virtue  theret»f,  l»y  a  certain  lime  therein  to  be  specifieil.  not  less 
than  sixty  days  from  the  date  of  such  warrant.' 

(5  00(1.  Such  warrant  shall  be  a  lien  upon  and  shall  bind  the  real 
and  personal  estate  of  the  persf»n  against  whom  the  same  shall  be  issued 
from  the  time  an  actual  levy  shall  be  made  by  virtue  thereof;  and  the 
sherilFto  whom  such  warrant  shall  be  directed,  shall  proceed  upon  the 
same  in  all  respects  with  the  like  elFect,  and  in  the  same  manner  as 
prescribed  by  law,  in  respect  to  executions  against  property  issued  by 
a  county  clerk,  upon  judgments  rendered  by  a  justice  of  the  peace,  and 
shall  be  entitled  to  the  same  fees  for  his  services  in  executing  the  same, 
to  be  collected  in  the  same  manner.' 

^  <!97.  In  case  of  the  neglect  of  any  sheriff  to  return  such  warrant 
according  to  the  directions  therein,  or  lo  pay  over  any  money  col- 
lected by  him  in  j pursuance  thereof,  he  shall  be  proceeded  against  in 
the  supreme  court  by  attachment,  in  the  same  manner,  antl  with  the 
like  elfect,  as  for  similar  neglects  in  reference  to  an  execution  issued 
out  of  the  supreme  court  in  a  civil  suit,  and  the  proceedings  thereon 
shall  be  the  same  in  all  resjiects.^ 

^  008.  When  it  shall  appear  by  the  return  of  any  collector,  made 
according  to  law  to  a  county  treasurer,  thai  any  tax  imposed  on  a  debt 
owing  lo  a  person  not  residing  in  the  United  States,  remains  unpaid, 
such  county  treasurer  shall,  after  the  expiration  of  twcntv  davs  from 
the  return  ff  such  collector,  issue  his  warrant  to  the  sherilV  of  any 
county  in  this  state,  where  any  (febtor  of  such  non-resident  creditor 
I  de.  Commanding  him  to  make  of  the  goods  and  chattels  and 

!  <•  of  such  non-resident,  the  amount  of  such  tax,  lo  be  specified 

in  a  schedule  annexed  to  the  said  warrant,  together  with  his  fees  and 
the  sum  of  one  dollar  lV»r  the  expense  of  issuing  such  warrant,  and  to 
return  the  said  warrant  to  the  treasurer  issuing  the  same,  and  to  pay 
over  to  him  the  money  which  shall  be  collected  by  virtue  thereof, 
except  the  sai.l  shei  itPs  fees  by  a  certain  day  therein  to  be  specified, 
within  sixty  days  from  the  «latc  of  such  warrant.* 

I  1  B  s    71**  ''.l'--  i  1  II.  H.  710,  ^Ui,  •111.  <•<!.      «  1  U.  H.  750,  (,\r,],  4(h  od. 

I-'  '  I.-»wi»  IMO,  ch.  327,  66.  Lawa  1861,  cb.  371,  ^6. 

>    1    I'w  .    ■  •     ••    '     I 

Law*  ib4(»,  ih.  <••«,  <)6. 


SPECIAL  i'ROCi:i:i)i.N(ji>.  287 

(^  GOD.  The  taxes  ui)on  sevenil  dchts  owing  lo  tin;  non-ro.sident 
shall  he  included  in  one  warrant,  and  the  taxes  upon  several  duhts  owint; 
to  dillerent  non-residents  may  be  included  in  the  same  warrant,  and 
where  several  non-residents  are  included  in  the  same  warrant,  the  sherifl" 
shall  be  directed  to  levy  the  sums  specified  in  the  sehedule  thereto 
annexed,  u|»on  the  personal  and  real  property  of  the  non-residents, 
respectivelv,  «>]»jK)sile  to  whose  names,  respectively,  such  sums  shall  be 
written,  together  with  the  sum  of  fifty  cents  upon  each  non-resident, 
for  the  expense  of  such  warrant.' 

^  700.  Such  warrant  shall  be  a  lien  upon,  and  shall  bind  the  real 
and  personal  estate  of  the  non-resident  against  whom  the  same  shall 
be  issued,  from  the  time  an  actual  levy  shall  l)e  made  upon  any 
property  by  virtue  thereof;  and  the  sherifl'  to  whom  such  warrant 
shall  be  directed,  shall  proc-eed  upon  the  same,  in  all  respects,  with  the 
like  eflect,  and  in  the  same  manner  as  prescribed  by  law  in  respect  to 
executions  against  properly,  issued  upon  judgments  rendered  in  the 
supreme  court,  and  shall  be  entitled  to  the  same  fees  for  his  services  in 
executing  the  same,  to  be  collected  in  the  same  manner. = 

;5  701.  In  case  of  the  neglect  of  any  sherifl",  to  return  such  warrant 
according  to  the  direction  therein,  or  to  pay  over  any  money  collected 
by  him  in  pursuance  thereof,  he  shall  be  proceeded  against  in  the 
supreme  court  by  attachment,  in  the  same  manner  and  with  like  eflect 
as  for  similar  neglects  in  reference  to  an  execution  issued  out  of  the 
supreme  couH  in  a  civil  suit,  and  the  proceedings  thereon  shall  be  the 
same  in  all  respects.^ 

g  702.  Special  provision  is  made  in  the  charters  of  several  of  the 
cities  and  towns  of  the  state,  for  the  collection  of  unpaid  taxes  by  the 
sheriff'  of  the  county,  or  the  marshals,  or  constables  of  such  cities  or 
towns  respectively.  The  duties  of  the  officers  to  whom  such  warrants 
are  directed  and  delivered  for  execution,  and  the  form  of  proceeding 
thereunder,  are  pointed  out  in  such  charters,  and  are  peculiar  to  each 
particular  ])lace.  For  this  reason,  as  well  as  that  they  are  liable  to  be 
varied  with  every  change  in  such  charters,  it  has  not  been  thought 
proper  to  occupy  space  with  the  form  of  proceedings  in  such  cases, 
as  each  officer  who  is  called  ujwn  to  act  will  have  the  statute  under 
which  he  is  so  authorized  to  act,  before  him.  It  has  been  held  that  a 
warrant  in  due  forfn,  issued  to  a  constable  by  the  receiver  of  taxes  in 
the  city  of  New  York,  for  the  collection  of  a  tax,  protects  the 
officer  executing  it,  whether  the  tax  was  legally  assessed  or  not.* 

>  1  R.  S.  750,  ()1G2.  3  R.  S.  7:>0,  v^lGi,  4th  ed. 

Laws  1851,  ch.  o71,()7.  L.iws  Ibol,  cli.  371,  ^9. 

«  1  R.  S.  750,  <il65,  4th  ed.  <  1  Si-ld.  370. 

Laws  1851,  ch.  371,^8. 


288  SPECIAL  PUOCKKDINGS. 

l(t.     NOTinCATIONS    AM)    WAURA.VT.S    OF    TIIK    CoMPTRoI.l.KR. 

^  703.  Whenever  the  cornplroller  shall  dcom  it  expedient,  he  shaH 
issue  a  notifn^ntion.  in  ihe  name  of  the  people  of  this  state,  to  any 
jvrson  who  shall  have  received  moneys  belonging  to  the  state,  for 
\vhi<'h  he  shall  not  have  aeronnte*!.  In  case  of  ><ie  death  of  such  person, 
the  notification  shall  be  directed  to  his  legal  representatives.'  Su«'h 
notification  shall  he  served  hv  the  sherilfof  the  county  where  the  person 
to  whom  the  same  sliall  he  directed,  shall  reside,  by  delivering  a  copy 
thereof  to  him.  or  bv  leaving  such  copy  at  his  usual  place  of  abode,  at 
least  fortv  days  be!"«>re  the  time  limited  in  the  notification  for  rendering 
such  accounts  and  vouchers.  The  return  of  3u<'h  notification  to  the 
comptroller's  office,  with  the  certificate  of  the  sheriff  indorsed  thereon, 
that  the  service  has  been  made  by  delivering  a  coj>y  of  the  notification 
to  such  person,  or  by  leaving  s4ich  copy  at  his  usual  ]>\aro  of  abode. 
shall  be  conclusive  evidence  of  the  proceedings." 

5  701.  If  anv  collector  of  tolls  shall  neglect  to  dej-xxsit  accordmg  to 
law,  and  the  directions  of  the  comptroller,  the  moneys  that  from  the 
abstracts  of  returns  made  to  the  comptroller,  he  shall  appear  to  have 
collected  for  tolls,  the  comptroller  may  issue  a  warrant,  under  his  hand 
and  seal,  directed  to  the  sheriff  of  any  county  where  such  collector  or 
any  of  his  sureties  may  be  found,  thereby  commanding  such  sherilT  to 
cause  the  amount  of  the  tolls  in  the  hands  of  such  collector,  (or  such 
part  thereof  as  the  comptroller  shall  direct  by  warrant.)  to  be  made 
and  levied  of  the  go(»ds  and  chattels,  lands  and  tenements  of  such  col- 
lector ;  and  in  case  the  same  shall  not  be  sufficient,  then  of  the  goods 
and  chattels,  lands  and  tenements  of  the  sureties  of  such  collector  ;  and 
to  return  the  money,  together  with  the  warrant  of  his  doings  thereon, 
to  the  comptroller,  within  sixty  days  from  the  date  thereof.'  The 
sheriff  to  whom  such  w'arrant  shall  be  directed,  shall  immediately  cause 
the  same  to  be  executed,  in  the  same  manner  as  in  civil  cases  ;  and  may 
demand  and  collect  the  same  fees  for  executing  the  same,  as  are  allowed 
by  law  for  the  service  of  executions  issuing  out  of  the  supreme  court.* 

3  70.'>.  Whenever  any  sherilf  shall  have  neglected  to  return  any 
warrant  issued  by  the  comptroller  against  any  collector  of  canal  toll.s, 
or  ■■'  '  '  ••  made  any  (»tlier  return  than  that  refpiired  by  law.  he  shall 
be  J  d  a^^ainst  in  the  sujireme  court,  by  attachment  for  neglect, 

in  the  same  manner  and  with  the  like  elVect,  as  for  neglect  to  return 
any  execution  in  a  <Mvil  suit ;  and  the  proceedings  thereon  shall  be  the 
same  in  all  rc-^p'cts.* 

I  1  n   S   172    T'  '  1  U   S  2^7,  ()\00.  s  2  U.  S.  r>5r>,  \^.T2. 

\  ■  '  M     "  ■     JiKl,  lih  I'd.  Id.  780,  ^32, 4th  cd. 

M  K  ..:  '1  K  s  -::,  dno. 

Id.  yjJ,,  (fi~J,M,  lUi  cd.         M.  COO,  <y:f>i,  4lh  cd. 


sppiciAL  rRorRF.nrNr^s.  289 

17.    TIIK.IU    DL'TIKH    CONCFMlMNli    STATE    I-A\I).S. 

^700.  If  any  person,  under  pretence  of  any  claim  inconsistent  wiih 
the  sovereiiinty  and  jin-isdiction  of  this  state,  shall  intrude  upon  any  of 
the  waste  or  ungrauted  lands  of  this  state,  it  shall  he  the  duty  of  the 
district  attorney  of  the  county,  immediately  to  report  the  same  to  the 
governor,  who  shall  thereujion,  hy  a  written  order,  direct  the  sheriff 
of  the  county  to  remove  from  said  lands  the  person  so  intruding  ;  and 
the  sherifl'  shall  execute  such  order  ;  and  in  case  of  resistance  made 
or  threatened,  he  may  call  to  his  aid  the  power  of  the  countv,  as  in 
cases  of  resistance  to  the  writs  of  the  peojjlc.' 

^  707.  Whenever  the  commissioners  of  the  land  office  shall  direct  a 
resale  of  lands  pursuant  to  the  statute,  they  shall  cause  notice  to  he 
given  to  every  occupant  of  such  land  to  remove  therefrom ;  and  in 
case  of  his  refusal  or  neglect  to  comply  with  such  notice,  they  shall 
direct  the  district  attorney  of  the  county  in  which  such  lands  may  he 
situated,  to  enter  a  complaint  against  such  occujiant,  before  the  county 
judge  of  the  county.  The  judge  shall  proceed  to  examine  into  the 
matter;  and  on  proof,  hy  the  jiroduction  of  a  certificate  from  the  clerk 
of  the  commissioners  of  the  land  olhce,  that  a  resale  of  such  land  has 
been  duly  ordered,  for  default  of  payment,  he  shall  issue  his  warrant 
to  the  sherirt'of  the  county,  commanding  him,  within  ten  days  after  the 
receipt  thereof,  to  remove  such  occupant  from  such  lands  ;  and  it  shall 
be  the  duty  of  the  sheriff,  within  the  time  specified  in  the  warrant,  to 
remove  such  person,  and  for  that  purpose  he  shall  have  the  same  powers 
as  in  the  execution  of  criminal  process.  The  sheriff  shall  retain  such 
warrant  in  his  hands,  and  if  any  person  so  removed  shall  return,  to 
settle  or  reside  upon  such  lands,  without  the  consent  of  the  state  engi- 
neer and  surveyor,  such  person  shall  forthwith  be  removed  by  the 
sheriff,  pursuant  to  the  warrant ;  and  shall  also  be  deemed  guilty  of  a 
misdemeanor,  and  he  liable,  on  conviction,  to  be  fined  or  imprisoned ; 
the  fine  not  to  exceed  one  hundred  dollars,  and  the  imprisonment  not 
to  exceed  thirty  days.  Every  judge  who  may  issue  such  warrant,  for 
the  issuing  such  wan-ant  and  taking  the  preliminary  proof,  shall  be 
entitled  to  receive  a  fee  of  one  dollar  in  each  case  ;  and  the  sheriff  for 
executing  every  such  warrant,  shall  be  allowed  such  compensation  as 
the  comptroller  shall  certify  to  be  reasonable  ;  which  fees  shall  be  paid 
out  of  the  treasury.'' 

^  708.  The  commissioners  of  the  land  office  may  require  the  sheriff 
of  any  county,  in  which  lands  belonging  to  the  people  of  this  state,  for 
which  patents  shall  not  have  been  issued,  or  anv  Indian  lands,  mav  be 

»  1  R.  S.  65,  ^<)3-5.  2  1  R.  S.  20G,  y}o2-55. 

Id.  77,  C)V3-5,  4th  ed.  Id.  449,  vv)6o-G8,  4th  ed. 

38 


290  SPECIAL  PROCRF.niXnS. 

aitiiated,  to  examine  nn«l  report  ti»  llu-in.  and  to  the  district  attorney  of 
his  rounty,  any  trt^sjiaHses  that  may  he  rommitled  on  su<h  hmds,  by 
cutting  or  carrying  away  the  timher  thereon.' 

17.   nisTn.MMNi;  inamm ati:  pkoitbtv. 

;^  70'.).  When  any  person  shall  ho  auth<>ri/.tMl  hy  hiw  t<j  (hslrain  any 
inanimate  f^ood.i  or  chattels  doing  damage,  he  shall  keep  the  same  in 
some  safe  and  convenient  place,  until  the  damages  shall  be  appraised, 
and  the  gotxls  he  sold  rtr  otherwise  disposed  of 

,^710.  lie  shall  apply  to  any  two  fence-viewers  of  tlie  town,  to 
appraise  the  damages  sustained  by  him  ;  who  shall  proceed  therein, 
in  the  same  manner  and  with  the  same  i)0wcrs,  as  in  res)>ecl  to  cattle 
doing  damage  ;  and  in  addition,  they  shall  estimate  and  certify  the 
value  of  the  property  distrained.' 

5  711.  The  distrainer  shall  affix  a  notice  in  three  public  places  of 
the  town,  for  ten  day.s,  as  follows : 

1.  Specifying  therein  the  property  distrained,  and  the  amount  of 
damages  certified  : 

2.  liequiring  the  owner  of  such  property  to  redeem  and  remove 
the  same,  before  the  day  therein  appointed  for  the  sale  thereof: 

3.  Stating  that  such  property  will,  on  some  day,  at  least  ten  days 
from  the  day  of  the  first  posting  thereof,  be  sold,  to  pay  such  damages, 
and  the  costs  and  charges  of  the  j»roceedings.^ 

(5  712.  If  the  value  of  the  proj)erty  distrained,  as  certified  by  the 
apprai-sers,  exreed  fifty  dollars,  the  distrainer  shall  publish  a  notice  in 
the  nearest  newspaper,  once  in  each  week,  for  four  weeks,  similar  to 
that  recjuired  in  the  last  section,  except  that  the  time  of  sale  shall  be 
at  least  thirty  days  from  the  day  of  the  first  [•ubiic-ation  of  such  notice.® 

^3  7i:{.  If  the  owner  of  such  property  be  known  to  the  distrainer, 
or  if  any  person  be  known  to  hiiu  as  claiming  any  interest  in  such 
property,  and  if  such  owner  or  person  reside  within  the  county,  the 
distrainer  shall  al.so  serve  a  copy  of  su<-h  notice,  within  two  tlays  after 
the  lime  of  posting,  or  after  the  first  day  of  the  |iul)Ii<-ation  thereof, 
either  jiersonnlly  on  such  owner  or  ]>crson,  or  in  case  of  his  absence 
from  his  usual  or  last  jdace  of  residence,  by  having  the  same  at  such 
residence,  with  a  proper  person.' 

^  7M.  If  »uch  goods  and  chattels  be  not  removed,  and  if  the 
damages  so  certified,  with  the  fees  of  the  aj)i)raisers  and  the  expenses 
of  such  notice,  Ihj  not  paid,  at  the  time  appointed  in  such  notice  for  the 

»  1  B.  B.  200.  <;72  »  2  R.  R.  51R,  <>9.  »  2  11.  R.  rA<.\  <)U. 

1.1   4rt'2.<,'M.  4lb  r<l                  M   TO.!,  </•,  lili  cd.  I.l.  7C,2,  ^11,  -ilh  cd. 

t  2  H.  H  /il».<>H  «  ::  K   H  fAM.  <}U).  *  2  R.  S.  OH),  <)\'2. 

Id.  7G2,  <)»,  4lh  cd.                   M.  70J,  <,lu,  .JUi  ed.  Id.  702,  ^12,  4lli  cd. 


SPECIAL  PROCi:i':i)INGS.  291 

sale,  tlio  ilistraiiier  shall  apidy  to  tiie  slieiill'  of  tlie  county,  or  one  ol 
liis  deputies,  or  to  any  constable  of  the  town,  to  sell  sur-|j  goods  and 
chattels,  and  shall  make  and  deliver  to  such  odicer,  an  allidavit 
shovvini^  his  compliance  with  the  foregoing  provisions,  and  the  original 
certificate  of  the  appraise)"s.' 

^  715.  If  such  allidavit  and  certificate  are  in  due  form,  and  show  a 
compliance  with  the  provisions  of  the  statute,  such  oflicer  shall  proceed 
and  sell  the  goods  and  chattels  so  distraiyed,  in  the  same  manner  as 
on  executions  against  personal  property  in  civil  cases,  and  with  the 
like  authority  and  efitct,  and  shall  be  entitled  to  the  same  fees  for  his 
services.- 

^710.  From  the  proceeds  of  such  sale,  such  oflicer  shall  retain  his 
own  fees,  and  shall  i)ay  to  the  distrainer  the  amount  of  the  damages 
so  certified,  and  the  exjienses  of  such  notices,  ;nid  also  all  expenses 
that  may  have  been  necessarily  incurred  in  the  safe  keeping  and 
preservation  of  such  property  ;  which  expenses  shall  be  ascertained 
and  certified  by  any  jutlge  of  the  county  courts,  or  by  a  justi<-e  of  the 
peace  of  the  county.' 

^  717.  If  any  balance  shall  remain,  such  oflicer  shall  pay  the  same 
to  the  county  treasurer,  for  the  use  of  the  owner  of  such  property,  or 
his  legal  representatives.* 

^  718.  When,  by  the  provisions  of  any  statute,  any  oflicer  is 
authorized  to  distrain  on  any  property,  for  any  purpose  whatever,  and 
no  special  provisions  shall  otherwise  be  made,  lie  shall  cause  at  least 
five  days  notice  of  sale  of  such  property  to  be  given  by  posting  the 
same  in  three  public  places  of  the  town,  where  such  sale  shall  be  made.* 

§  719.  Before  making  any  such  sale,  such  oflicer  shall  also  cause 
the  property  distrained,  to  be  appraised  by  three  disinterested  free- 
holders of  the  town,  on  oath  ;  and  such  appraisal,  with  an  inventory 
of  the  properly  distrained,  shall  be  certified  by  the  appraisers  in 
writing.' 

§  "7-20.  Within  ten  days  after  any  such  sale,  the  oflicer  making  the 
same  shall  file  in  the  oflice  of  the  clerk  of  the  town  or  city  where 
such  sale  was  made, 

1.  His  own  aflidavit,  specifying  the  cause  of  such  distress,  and  the 
amount  of  the  penalty,  tax,  duty  or  other  sum,  for  which  the  same  was 
made  : 

2.  Proof,  by  aflidavit,  of  the  notice  herein  required,  having  been 
given  : 

3.  The  inventory  and  certificate  of  the  appraisers: 

>  2  R.  S.  619,  ()13.  3  2  R.  S.  519,  ^15.  s  o  R.  S.  520,  <y20. 

Id.  762,  ^13,  4th  ed.                 Id.  7G2,  ^15,  4th  ed.  Id.  763,  ^20,  4th  cd. 

»  2  R.  S.  519,  <)U.  <  2  R.  S.  519,  <)16.  6  2  R.  S.  520,  i/Jl. 

Id.  762,  ^14,  4th  cd.               Id.  7C3,  ^16,  4th  cd.  Id.  763,  ^21,  4th  ed. 


292  sr i:ri A L  Piu>ci:i:niN(;s. 

Wliicli  papers,  wIumi  so  lilcil,  shall  he  prt'sum|ilivc  evidence  of  the 
facts  tlicrcin  conUiinfil.  And  iiidess  ilie  fiMoj^oing  provisions  are 
ooinplied  with,  \vi:hin  ihotiiiic  required,  such  olHccr  shall  forfeit  lo  the 
owner  of  the  j»roperty  soKI,  twenty-five  dollars.' 

5  7*1.  Troni  the  proceeds  of  such  sale,  such  ollicer  shall  be  aullmr- 
ized  to  deduct  and  retain  the  expenses  of  such  appraisal,  cerlificale, 
notice.  pro(»f  and  alVulavit.s  and  of  the  filini;  of  the  same,  as  herein 
re(iuired.  AntI  the  residuy  cd"  such  proceeds,  after  satisfying  the 
j>enalty.  tax,  duly  or  other  sum,  for  which  such  sale  was  made, 
shall  he  paid  within  ten  days  after  such  sale,  to  the  treasurer  of  the 
county,  for  the  use  of  the  owners  of  such  property." 

^  1'22.  The  cases  in  which  the  foregoing  provisions  api)ly,  are  not 
very  clearly  defined.  The  statute  itself  refers  them  to  those  cases 
where  no  special  jirovision  shall  otherwise  be  made.  The  revisors 
in  their  notes  say,  that  there  are  various  cases  where  olTicers  are 
allowed  summarily  to  distrain  on  property,  as  for  the  collection  of 
canal  tolls  and  penalties.^  It  has  however  been  determined  that  the 
foregoing  jirovisions  ilo  not  apply  to  a  collector  of  a  district  school  tax, 
and  that  he  is  not  liable  to  the  foregoing  penalty,  for  neglect  to  file  the 
evidences  of  his  proceedings.* 

19.     WRF.CKS. 

<5  723.  The  shcrifl',  coroners  and  wreck  masters  of  every  county  in 
which  any  wrecked  property  shall  be  found,  when  no  owner,  or  other 
j»erson  entitled  to  the  possession  of  such  property,  shall  appear,  shall 
severally  have  power,  and  it  shall  be  their  duty  to  pursue  all  necessary 
measures  for  saving  and  securing  such  properly ;  lo  take  possession 
thereof,  in  whose  hands  soever  the  same  may  be,  in  the  name  of  the 
people  of  this  state;  to  cause  the  value  thereof  lo  be  appraised  by 
indilFerenl  persons;  and  to  keep  the  same  in  some  safe  place  lo  answer 
the  claims  of  such  persons  as  may  thoreafler  appear  entitled  thereto.' 

<5  7;,' I.  If  the  property  so  saved  shall  be  in  a  |)erishable  slate,  so  as 
to  render  the  sale  thereof  expedient,  it  shall  be  the  duly  of  the  ofllcer 
in  whose  custody  the  same  shall  be,  lo  ajiply  lo  the  county  judge  of  the 
county,  by  a  petition,  supj)orled  by  an  aHulavit  of  the  facts,  for  an 
order  aulhoiizing  such  sale;  and  if  the  judge  to  whom  such  application 
shall  be  made,  shall  be  satisfied  that  a  sale  of  the  property  would  be 
most  beneficial  to  the  parties  inleresled.  it  shall  br  his  duty  to  make 
the  order  so  a|»j)Iied   for.' 

2  725.  If  such  order  be   made,  the   olli'-er   having   custody  of  the 

«  2  B.  8.  620,  </>22,  23.  >  3  R.  8.  707,  'M  v,\.  MRS.  090,  ^'J. 

M.  7fl8,</>22.  23,  4lh  cd.  1  II   H  Uia,  (;137.  2  I.I.  KK),  ^2,  Ith  cd. 

i  2  R.  8.  621,  ^2^.  M.  '>W,  </SM,  ith  cd.  •  1  R.  H.  ^'JO,  <yi. 

Id.  704,  <^,  4lb  cd.  *  i  D;irb    210.  2  Id.  100,  ^.J,  4lli  cd. 


SPECIAL  PROCHEDhNGS.  21)3 

property  diivctcd  to  be  sold,  sIkiII  sell  the  same  at  iiuljlic  auction,  at 
the  time  and  in  the  manner  to  Ik;  specified  in  the  order,  of  which  notice 
must  he  ^iven  as  hereinafter  mentioned  :  and  the  proceeds  of. such  sale, 
de(hicting  the  expenses  thereol',  as  the  same  shall  be  settled  and  alhjwcd 
by  the  judge  making  the  order,  shall  be  paid  to  the  treasurer  of  the 
county  in  which  the  projjcrly  shall  have  been  found.' 

^  7ii(5.  If,  within  a  year  after  such  wrecked  property  shall  have  been 
found  and  saved,  any  person  shall  claim  the  same  or  the  proceeds 
thereof,  as  owner  or  consignee,  or  as  the  agent  of  the  owner  or  con- 
signee, and  shall  establish  his  claim  by  evidence,  which  tlie  county 
judge  of  the  county  shall  deem  satisfactory,  it  shall  be  the  duty  of  such 
judge,  on  receiving  the  bond  re(iuirc(l  to  be  given  in  such  cases  by  such 
claimant,  to  make  an  order  directing  the  oHioer,  in  whose  possession 
such  property,  or  the  proceeds  thereof  shall  be,  to  deliver  or  pay  the 
same  to  the  claimant,  upon  the  payment  by  him  of  a  reasonable  salvage, 
and  all  necessary  expenses  incurred  in  the  preservation  and  keeping 
of  -such  proi)erty.'' 

^  727.  The  rejection  by  the  judge,  to  whom  it  may  be  exhibited,  of 
any  claim  for  wrecked  property,  shall  not  preclude  the  claimant  from 
maintaining  a  suit  for  the  recovery'of  such  property  or  its  proceeds, 
against  the  officer  in  whose  hands  the  same  shall  be  ;  but  if  the  plaintiff 
in  any  such  suit  shall  prevail,  there  shall  be  deducted  in  addition  to  the 
salvage  and  expenses  charged  on  the  property,  from  the  damages  to 
be  recovered,  all  the  costs  of  the  defendant  in  making  his  defence.^ 

^  728.  It  shall  be  the  duty  of  every  officer  to  whom  any  order  duly 
made,  for  the  delivery  of  wrecked  property,  or  the  payment  of  its 
proceeds,  shall  be  directed,  to  present  to  the  claimant  exhibiting  such 
order,  a  written  statement  of  the  claims  for  salvage,  and  expenses  on 
such  property  and  proceeds.  If  the  claimant  shall  refuse  to  allow  such 
claims,  the  amount  of  such  salvage  and  expenses  shall  be  adjusted  in 
the  manner  hereinafter  mentioned,  and  in  all  cases,  after  the  payment 
or  the  tender  of  the  payment  of  such  salvage  and  expenses  as  agreed 
to,  or  adjusted,  the  officer  in  whose  custody  such  property  or  proceeds 
shall  be,  shall  deliver  or  pay  the  same,  according  to  the  terms  of  the 
order  directed  to  him.^ 

g  729.  It  shall  be  the  duty  of  the  wreck  masters,  in  the  several 
counties  in  which  they  shall  be  appointed,  to  give  all  possible  aid  and 
assistance  to  all  vessels  stranded  on  the  coasts  of  their  respective 
counties,  and  to  the  persons  on  board  the  same,  and  to  use  their  utmost 
endeavors  to  save  and  preserve  such  vessels,  and  their  cargoes,  and  all 

1  m.  S.  691,  V-*.  ?  1  R.  S.  GOl,  v>8.  <  1  R.  S.  692,  <)0. 

2  Id.  100,  ^4,  4th  c(l.  2  R.  S.  101,  v8,4th  ed.  2  R.  S.  101,  V'-^, -lili  ed. 

SIR.  S.  G91,v^5,  6. 

2  Id.  100,  ^^5  6,  4th  ed. 


'><j.l  srECiAL  PR()ri:i-:i)iX(;g. 

ifooils  ami  inerchandi/e  wliirh  may  be  <'asl  l>y  lUv  soa  upon  the  land; 
anil  in  the  pcrforinance  of  these  duties  they  shall  employ  such  and  so 
many  men  as  thev  may  respectively  think  proi>er.  And  it  shall  be  the 
duty  of  all  mai^istrates,  constables  and  citizens  to  aiil  and  assist  the 
wreck  masters,  when  requirctl.  in  the  discharge  of  their  duties.' 

^  7. 'JO.  All  sherilfs,  coroners  and  wreck  masters,  and  all  jwrsons 
emjiloyed  by  them,  and  all  other  persons  aiding  and  assisting  in  the 
recovery  an«l  presorvaiion  of  wrecked  proi»erty,  shall  be  entitled  to  a 
reasonable  allowance  as  salvage  for  their  services,  and  to  all  expenses 
incurred  bv  them,  in  the  |>crformance  of  such  services,  out  of  the  pro- 
perly saved;  and  the  oflieer  having  the  custody  of  such  property  shall 
detain  the  same  until  such  salvage  expenses  have  been  paid.'  It  has 
been  determined  that  a  canal  boat  sunk  in  the  Hudson,  <»ne  hundred 
miles  from  the  ocean,  was  not  a  wreck  ;'  and  that  no  person  assisting 
in  saving  wrecked  property,  except  the  ofVicer,  hail  a  lien  thereon  for 
salvage  and  expenses.* 

v^  731.  The  whole  salvage  that  shall  be  claimed  in  any  ca.se  shall 
not  exceed  one-half  the  value  of  the  property  or  proceeds  on  which 
such  salvage  shall  be  charged,  and  every  agreement,  order  or  adjust- 
ment allowing  a  greater  salvage  sliall  be  void.* 

^S  732.  If  in  any  case,  the  amount  of  salvage  and  expenses  on 
property  saved,  shall  not  be  settled  by  the  agreement  of  the  parties, 
the  owner  or  consignee  of  such  property,  or  the  master  or  supercargo 
having  charge  thereof  at  the  time  the  same  was  wrecked,  or  a 
claimant  having  an  order  for  its  delivery,  may  apply  to  any  one  of  the 
judges  of  the  countv  court  of  the  county  in  wiiich  such  jMoperty  shall 
be,  for  the  api)ointment  of  suitable  persons  as  ajtpraisers,  to  adjust 
and  settle  the  amount  of  such  salvage  and  expenses.* 

5  733.  It  shall  be  the  duty  of  the  jutlge  to  whom  such  application 
shall  be  made,  by  an  order  under  his  hand  and  b^eal,  to-apjujint  three 
disinterested  freeholders,  of  the  county,  not  inhabitants  of  the  town  in 
which  the  jjropertv  shall  have  been  saved,  to  adjust  and  settle  such 
salvage  and  expenses.' 

^  731.  The  persons  .so  appointed,  before  they  shall  enter  upon  the 
I)erforn)an<-e  of  their  duties,  shall  be  sworn  to  perform  faithfully  and 
impartially  the  duties  of  their  trust,  before  any  ollicer  authorized  to 
administer  oaths.  They  shall  have  power  to  issue  compulsory  process 
for  the  attendance  of  witnesses,  and  to  administer  oaths  to  all  wit- 
nesses who  .shall  attend  or  be  produced  ;  and  their  decision,  or  that  of 
any  two  of  them   under  their  hands,  as  to  the  amount  of  salvage  and 

I  1  K.   H.  092,  <><ilO,  11.  >  7  IJnrh.  113.  •  1  U.  H.  Olt.*},  (;11. 

•J  1<1.  I'M,  f)^l".  *1.  <'*>  ^'''   *  ''  •*''*'^''  '■^'"*-  -  '•'    '"'-''  *>'■*•  ■'^''  ^*^- 

i  1  K   H   iv.rj,  <fl2.  «  1  K   H.  r.u.t  (^m.  t  ]  K.  s.  iVXi,  (>ir». 

•;  Id.  lo'j,  <,V2,  Hi\  c«l.  ::  M.  iw,  ^la,  iih  td.  2  Jd.  lo::,  vi6,  lUi  cd. 


SPECIAL  PROCEKDINCiS.  295 

expenses  that  ought  to  be  paid,  ami  the  sums  to  be  paid  to  carh  person 
entitled  to  share  in  such  salvage,  or  rlaiming  such  exjienses,  shall  be 
final  and  conclusive.' 

g  735.  The  fees  and  expenses  of  the  appraisers  shall  be  jtaid  by  the 
person  on  whose  application  they  shall  have  been  appointed,  and  shall 
be  a  charge  on  the  j>roperty  saved.  Each  appraiser  shall  be 
entitled  to  two  dollars  for  each  day's  necessary  attendance,  and  to  a 
sum  not  exceeding  one  dollar  for  his  daily  expenses.' 

^  "i'.iO.  If  within  a  year  after  the  wrecked  property  shall  have  been 
saved,  no  person  shall  have  appeared  to  claim  the  same,  or  if  within 
three  months  after  a  claim  shall  have  been  preferred,  the  salvage  and 
expenses  on  such  property  shall  not  have  been  paid,  or  a  suit  for  the 
recovery  of  the  property  have  been  commenced,  it  shall  be  the  duty 
of  the  officer  in  whose  custody  such  property  shall  be,  to  sell  the  same 
at  public  auction,  and  to  pay  the  j)roceeds  of  such  sale,  deducting 
salvage  and  expenses,  into  the  treasury  of  this  state,  for  the  benefit  of 
the  parties  interested  ;  but  in  no  case  shall  any  deduction  of  salvage 
and  expenses  be  made,  unless  the  amount  thereof  shall  have  been 
settled  upon  due  proof,  by  an  order  of  the  county  judge  of  the  county 
in  which  the  j^roperty  shall  have  been  saved,  a  copy  of  which  order 
and  of  the  evidence  in  support  thereof  shall  be  transmitted  by  the 
judge  making  it  to  the  comptroller.^ 

^  737.  The  provisions  of  the  preceding  section  shall  be  construed  to 
apply  to  the  proceeds  of  wrecked  property,  so  far  as  relates  to  the  time 
and  manner  of  settling  the  salvage  and  expenses  chargeable  thereon. 
The  balance  of  such  proceeds,  after  the  salvage  and  expenses  as  settled, 
shall  have  been  deducted,  shall  be  paid  by  the  county  treasurer  into 
the  treasury  of  this  state.* 

^  738.  Public  notice  of  every  sale  to  be  made  of  wrecked  projierty, 
under  the  foregoing  provisions,  shall  be  published  by  the  ofllcer  making 
the  sale,  for  at  least  two  weeks  in  succession,  in  one  or  more  of  the 
newspapers  printed  in  the  city  of  New  York.  Every  such  notice  shall 
state  the  time  and  place  of  the  sale,  and  shall  contain  a  particular 
description  of  the  property  intended  to  be  sold.' 

§  739.  Every  sherifl",  coroner  or  wreck  master,  into  whose  possession 
any  wrecked  property  shall  come,  shall  immediately  thereafter  publish 
a  notice,  directed  to  all  parties  interested,  for  at  least  four  weeks  in 
succession,  in  one  or  more  of  the  newspapers  printed  in  the  city  of 
New  York.^  Every  such  notice  shall  contain  a  minute  description  of 
such  wrecked   property,  and  of  every  bale,  bag,  box,  cask,  piece  or 

1 1  R.  S;  693,  ()16.  3  1  R  8.  693,  ^18.  5  1  R.  S.  693,  <i20. 

2  Id.  102,  <\16,  4th  cd.  2  Id.  102,  <)1S,  4th  cd.  2  Id.  103,  ^20,  4th  cd. 

2  1  R.  S.  cm,  <^\-.  4  1  R.  S.  6M.  (;10.  «  1  R.  S.  093,  <)2\. 

2  Id.  102,  Vl7,  4th  cd.  2  Id.  102,  <)19,  4th  cd.  2  Id.  103,  (/21,  4th  ed. 


296  SPECIAL  PROCF.F. DINGS. 

parcel  thereof,  and  of  the  marks.  l)rnn«ls,  letters  niul  fiirures  on  each, 
nnd  shall  state  where  such  wrecked  property  then  is,  and  iLs  actual 
condition,  and  the  name  if  known,  f>f  the  vessel  from  which  it  was 
taken  or  cast  on  shore,  and  of  the  master  and  supercargo  f»f  such  ves- 
sel, and  the  |>lace  where  such  vessel  then  is,  and  its  actual  condition. 
The  expense  of  puhlishin'j  every  notice  directed  to  be  published,  shall 
be  charged  on  the  i)roiK'rty  or  proceeds  to  which  such  notice  shall 
relate.' 

,^  7  10.  Every  sherilV.  coroner,  wreck  master  or  other  ofii<"cr,  who 
shall  detain  in  his  hands  any  wrecked  property,  or  the  proceeds  thereof, 
after  the  salvage  and  expenses  chargeable  thereon  shall  have  been 
paid,  or  oflercd  to  be  j)nid  to  him,  or  who  shall  be  guilty  of  any  fraud, 
emltezzlcment  or  extortion,  in  the  ilischargo  of  his  duties,  or  who  shall 
in  any  manner  violate  the  provisions  of  the  statute  relative  to  wrecks, 
shall  forfeit  treble  damages  to  the  party  injurechjmd  shall  be  deemed 
jruiltv  of  a  misdemeanor.'' 

^  741.  Every  person  who  shall  lake  away  any  goods  from  any 
stranded  vessel,  or  any  goods  cast  by  the  sea  upon  the  land,  or  found 
in  any  bay  or  creek,  or  who  shall  knowingly  have  in  his  possession  any 
goods  so  taken  or  found,  and  shall  not  deliver  the  same  to  the  sheriff, 
or  one  of  the  coroners  or  wre<'k  masters  of  the  county  where  the  same 
shall  have  been  found,  within  forty-eight  hours  after  the  same  shall 
have  been  taken  by  him,  or  have  come  into  his  possession,  shall  forfeit 
treble  the  value  of  the  goods  so  taken  or  kept  by  him,  to  the  owner  or 
consignee  thereof,  and  shall  be  deemed  guilty  of  a  misdemeanor,  pun- 
ishable bv  Hne  and  imprisonment,  or  both,  in  the  discretion  of  the  court 
by  which  he  shall  be  tried. ^ 

^  7  12.  Every  person  who  shall  deface  or  obliterate  the  marks  on 
wrecked  property,  or  in  any  manner  disguise  the  appearance  thereof, 
with  intent  to  prevent  the  owner  from  discovering  its  identity,  and  any 
person  who  shall  destroy  or  suppress  any  invoice,  bill  of  lading  or 
other  document,  tending  to  show  the  ownership  of  wrecked  property, 
shall  be  deemed  guilty  of  a  misdemeanor,  punishable  by  fine  and  impris- 
onment, the  fine  not  to  exceed  two  thousand  dollars,  the  imjirisonment 
three  years.* 

^  713.  It  shall  be  the  duty  of  all  judges,  sheriffs,  justices  of  the  peace, 
coroners,  constables  and  wreck  masters,  to  jiresent  all  offences  and 
offenders,  against  the  |irovisions  of  title  twelve  of  chajiter  twenty,  of 
the  firsl  part  of  the  Revised  Si;itules,  herein  before  set  forili.  tli.al  shall 

«  1  R.  8.  6M,  ^22.  23.  »  1  H.  8.  094,  ()26.  M  R.  8.  Wi,  <>20. 

2  I<I.  10.1.  </>22.2.'J,  nil  f.l        '2  M.  W],  fyi:>,  llh  cd.  2  Id.  103,  (/IG,  Itli  cd 

«  1  H  8.  CM.  </ii 

Id.  103,  <>24,  HJi  <  I 


PROCESS  issui:n  nv  suiuiOGATics.  21)7 

come  to  their  kno\vIc{iu;e,  within  their  respective  counties,  to  thegraml 
jury  at  the  next  court  of  sessions  therein.' 

^741.  The  shorifT,  dork  or  county  judge  of  each  county,  who  shall 
receive  a  notice  of  an  election,  from  the  secretary  of  state,  or  board  of 
county  canvassers,  sliall,  without  dehiy,  dehver  a  copy  of  such  notice  to 
the  supervisor  or  one  of  the  assessors  of  each  town  or  ward  in  his  county. 
He  hhall  also  cause  a  copy  of  such  notice  to  be  pubhshed  in  all  the 
public  newspapers  in  his  county,  once  in  each  week,  until  the  election 
therein  sjiecified  ;  if  there  be  none  printed  in  his  county,  then  in  some 
newsjinper  of  an  adjoining  county.' 

CHAPTER  XXXIX. 

PROCESS  ISSUED  BY  SURROGATES. 

^  715.  Every  surrogate  shall  have  power, 

1.  To  issue  suLpcrnas  under  his  seal  of  oflice,  to  compel  the  attend- 
ance of  any  witness  residing  or  being  in  any  part  of  this  state,  or  the 
|)roduction  of  any  paper,  material  to  any  inquiry  pending  in  his  court, 
the  form  of  which  shall  be  similar  to  that  used  by  courts  of  record  in 
like  cases  : 

2.  To  punish  disobedience  to  any  such  subpoena,  and  to  punish  wit- 
nesses for  refusing  to  testify  after  appearing,  in  the  same  manner  and 
to  the  same  extent  as  courts  of  record  in  similar  cases,  and  by  process 
similar  in  form  to  that  used  by  such  courts  : 

3.  To  issue  citations  to  parties  in  all  matters  cognizable  in  his  court, 
and  in  the  cases  prescribed  by  law,  to  compel  the  attendance  of  such 
parties  : 

4.  To  enforce  all  lawful  orders,  process  and  decrees  of  his  court,  by 
attachment  against  the  persons  of  those  who  shall  neglect  or  refuse  to 
comply  with  such  orders  or  decrees,  or  to  execute  such  process  ;  which 
attachments  shall  be  in  form  similar  to  that  used  by  the  court  of  chan- 
cery in  analogous  cases : 

5.  To  preserve  order  in  his  court  during  any  judicial  proceedings, 
by  punishing  contempts  which  amount  to  an  actual  interruption  of 
business,  or  to  an  open  and  direct  contempt  of  his  authority  or  person, 
m  the  same  manner  and  to  the  same  extent  as  courts  of  record.^ 

^  746.  Process  of  attachment  or  other  compulsory  process,  authorized 
by  law  to  enforce  the  orders,  process  or  decrees  of  surrogates'  courts, 

>  1  R:  S.  694,  V)27.  2  1  R.  S.  .041,  <)15,  4th  cd.      3  o  R.  S.  221,  M. 

2  Id.  103,  ^27,  4tb  ed.  Laws  1842,  cb.  130,  art.  Id.  419,  <^10,  4th  rd. 

3,  ^14.  Laws  1830,  ch.  320,  ^G6. 

39 


208  PROCESS  ISSUED  BV  SUR  110(1  ATES. 

may  he  issued  by  the  surrogate  of  one  counly  lo  the  nllicers  required 
by  law  lo  serve  such  process  in  any  other  county  of  the  state  wljere  it 
may  be  necessary  to  serve  the  same  ;  and  the  oflicer  receiving  llie 
same  shall  have  iK)\ver  and  authority  tr»  arrest  the  i)erson  or  j)ersons 
against  whom  such  jirocess  is  issued,  and  to  convey  the  |»erson  or 
persons  so  arrested,  to  the  county  and  place  where  the  writ  may  be 
returnable.'  IJut  it  has  been  held  that  a  surrogate  has  no  power  to 
issue  an  attachment  against  a  witness  to  bring  him  up  "to  testify," 
and  if  a  sherilF  should  refuse  to  execute  such  attachment,  he  would  not 
be  in  contempt.  And  if,  in  such  case,  the  surrogate  should  issue  an 
attachment  against  him  therefor,  lo  the  coroner,  and  the  same  should 
be  executed,  such  surrogate  would  be  a  trespasser.  He  has  power  to 
pimisli  one  who  disobeys  a  subptrna,  lo  appear  and  testify,  but  not  to 
bring  him  up  on  allachment  "  lo  testify. "' 

(3  7-17.  All  attachments  and  other  compulsory  process,  which  may 
be  issued  by  any  surrogate,  shall  be  made  returnable  lo  the  county 
•where  the  same  may  issue ;  and  ihe  tenth,  twelfth  and  thirteenth  sec- 
lions,  and  sections  sixteenth  lo  thirty-second,  title  thirteenth  of  chapter 
eight  of  the  third  jtart  of  the  lievised  Statutes,  inclusive,  shall  api)ly  to 
attaclmients  issued  by  surrogates.^ 

^  718.  Every  sheriff,  jailer,  coroner  or  other  executive  oll'icer,  to 
whom  any  citation,  subpa^ia,  attachment  or  olhc\-  pntcess  issuetl  by  a 
surrogate's  court,  may  be  directed  or  delivered  for  the  |)urpose  of  being 
executed,  shall  execute  the  same  in  the  same  manner  as  if  issued  by  a 
court  (d"  record,  and  for  any  neglect  or  misfeasance  therein,  shall  be 
subject  to  the  same  penalties,  actions  and  proceedings,-as  if  the  same 
had  occurred  in  relation  to  any  j^rocess  issued  l)y  courts  of  record,* 

5  719.  Disobedience  lo  any  siibpcena  to  appear  and  prove  a  will,  or 
to  produce  any  will  before  a  surrogate,  shall  be  ])roceeded  against  and 
punished  as  in  other  cases  of  proceedings  before  surrogates.  If  any 
person  be  committed  for  not  j>roducing  any  will,  he  may  be  discharged 
on  producing  the  same  to  the  surrogate  wlio  committed  him,  by  an 
order  for  that  purpose.' 

2  7.'iO.  A  citation  to  appear  and  attend  the  probate  of  a  will  shall  be 
served  on  the  persons  to  whom  it  is  directed,  as  follows  : 

1.  On  such  as  reside  in  the  same  county  with  the  surrogate,  or  an 
odjoining  county,  by  delivering  a  copy  to  such  jjcrson,  at  least  eight 
days  before  the  day  appointed  for  taking  the  proof,  or  by  leaving  a 
copy  at  least  eight  days  as  aforesaid,  at  the  dwelling  house  or  other 
place  of  residence  of  such  person,  with  some  individual  of  suitable  age 

ion    <    l"i    <'19,  4lh  f«l.       »'Ji!   v;    ,.,.,  .-,00^  .111,  ,.,1.        4  2  R.  S.  2L'n,  ()0. 

I.  i.430,  ((OO.  I  .  li. -100,  ^07.  l(l.-l'J2,<yjn,  Ithcd. 

«&!'  >'  i  i.&c,  » 'JU.  S.  rjH,  0)11. 

Id.  212,  ^8,  llli  cd. 


PROCHSS  ISSlJi:i)  HV   SI  illl()(;ATF,S.  t>l)9 

and  discretion,  and  iiiukM-  siicli  ciicMinistaMccs  as  shall  induce  a  reason- 
able prcsiunption  in  the  mind  of  the  surrogate  that  the  coj))-  rauie  to 
the  hands  or  knowledge  of  the  jicrson  to  be  served  with  it,  in  time  for 
him  to  attend  the  probate  of  the  will  . 

2.  On  such  as  reside  in  any  other  county  in  this  state,  by  dehvering 
a  copy  personally  to  such  person,  or  leaving  it  at  his  dwelling  house 
or  other  place  of  residenre,  in  the  manner  and  under  the  f:ircumslances 
above  mentioned,  at  least  fifteen  days  before  the  day  appointed  for 
taking  the  proof: 

3.  On  such  persons  as  do  not  reside  in  this  state,  citations  may  be 
served  by  delivering  a  copy  personally  to  such  persons,  or  leaving  it 
at  his  or  her  dwelling  house  or  other  place  of  residence,  not  less  than 
fifteen  days  nor  more  than  ninety  days  before  the  day  appointed  for 
taking  proof  of  any  will ;  and  on  such  persons  as  do  not  reside  in  this 
state,  or  whose  places  of  residence  cannot  be  ascertained,  by  publish- 
ing a  copy  of  the  citation  in  the  state  paper,  for  six  weeks  previous 
to  the  day  appointed  for  taking  the  proof.' 

^751.  Where  one  applies  for  administration,  and  there  shall  be  any 
other  person  having  a  prior  right,  and  a  citation  be  issued,  if  any 
person  to  whom  such  citation  shall  be  directed  shall  reside  within  the 
county  of  such  surrogate,  such  citation  shall  be  served  personally,  or 
by  leaving  a  copy  at  the  residence  of  such  person,  at  least  six  days 
before  the  return  day  thereof;  if  any  such  person  reside  out  of  such 
county,  but  within  the  state,  and  such  residence  can  be  ascertained, 
service  shall  be  made  in  the  same  manner,  at  least  forty  days  before 
the  return  day  of  the  citation  ;  if  any  such  person  reside  out  of  the 
state,  or  his  residence  cannot  be  ascertained,  such  citation  may  be 
personally  served  without  the  state  forty  days  before  its  return,  or 
may  be  published  once  in  each  w^eek,  for  six  weeks  successively,  in 
the  state  jiaper.'* 

^  752.  The  service  of  a  citation  upon  an  executor  or  administrator, 
against  whom  complaint  has  been  made  to  the  surrogate,  shall  be 
made  personally  on  the  person  to  whom  it  may  be  directed,  at  least 
six  days  before  the  return  thereof,  if  he  be  in  the  county ;  and  if  he 
shall  have  absconded  from  the  county,  it  may  be  served  by  leaving  it 
at  his  place  of  residence.' 

^  753.  A  citation  of  a  surrogate  to  a  guardian,  against  whom 
a  complaint  shall  have  been  made,  for  misconduct  on  his  part,  to 
appear  and  show  cause  why  he  should  not  be  removed  from  his 
guardianship,  shall  be  served  personally  on  the  guardian,  to  whom  it 

>  2  R.  S.  249,  <)o\,  4th  cd.        2  2  R.  S.  7G,  ^86.  »  2  R.  S.  72,  (jl9. 

Laws  1837,  ch.  460,  ^8.  Id.  200,  ^.36,  4th  ed.  Id.  257,  ^\0,  4th  cd. 

"       1840,  ch.  384,  (l.  Id.  263,  ^48. 

Laws  1837,  ch.  460,  ^26. 


M)  PROCESS  ISSUKD   in-  srUROGATES. 

may  In?  liirecled,  at  lea.sl  fuiirleen  days  before  the  return  thereof;  or 
if  sucli  guardian  shall  have  ahs«N)ndi'd  or  ronrealed  himself  so  that 
such  citation  cannot  he  j>ersonalIy  served,  it  may  he  scrveil  hy  leaving 
a  copy  lhere"»f,  at  the  last  place  of  residence  of  surh  ^ardian.' 

^  751.  Where  a  guardian  si-eks  to  resign  his  trust,  the  citation  to 
the  \var«l  to  show  raiise  win  such  guardian  should  not  be  at  liberty 
to  resign  his  trust,  shall  be  served  hy  delivering  a  copy  to  llu'  ward  at 
least  ten  days  before  the  return  day  thereof.' 

5  7.'i.'».  Where  the  citation  is  issued  for  the  attendance  of  jiarties 
U|X)n  the  probate  of  a  will,  proof  of  the  service  thereof  can  only  be 
ma<le  by  the  afTidavit  of  the  j>erson  making  such  service,  whether  he 
be  the  sheriff,  or  any  other  public  ollii-er  or  private  riti/en.'  In  all 
other  cases,  the  certificate  of  the  sherilV  of  the  due  service  of  a 
citation  will  ]»e  sufficient. 

^  7aG.  Whenever  in  any  of  the  cases  in  which  the  i)ublic  adminis- 
trator of  the  city  of  New  York  is  authorized  to  take  charge  of  the 
efiects  of  anv  intestate,  any  goods,  chattels,  credits  or  elVects  of  the 
deceased  or  of  which  he  had  possession  at  the  time  of  his  death,  or 
within  twenty  days  previous  thereto,  shall  not  have  been  delivered  to 
the  public  administrator,  nor  accounted  for  satisfactorily,  by  the 
persons  who  were  about  the  deceased  in  his  last  sickness,  or  in  whose 
hands  the  effects  of  the  deceased,  or  any  of  them,  may  be  suj)posed 
at  anv  time  to  have  fallen.'the  j>ublic  administrator  may  institute  an 
inquiry  concerning  the  same  ;  and  ujion  satisfying  the  surrogate  of  the 
city  and  county  of  New  York,  by  alfidavit,  that  there  are  reasonable 
grounds  for  sus|>ecting  that  any  such  effects  are  concealed  or  withluld, 
he  shall  be  entitled  to  a  subjxjuna  to  be  issued  by  the  surrogate  under 
his  seal  of  ofBce,  to  such  persons  as  the  said  public  administrator  shall 
designate,  recpiiring  them  to  appear  before  such  surrogate,  at  the  time 
and  place  therein  to  be  specified,  for  the  purpose  of  being  examined 
touching  the  estate  and  effects  of  the  deceased.* 

5  757.  If  the  surrogate  be  absent  from  the  city  of  New  York, 
such  application  for  a  subpoena  may  bo  made  to  any  justice  of 
the  supreme  court  elected  for  the  district,  to  the  first  judge  of  the 
court  of  common  pleas  of  the  said  city  and  county,  or  to  the  mayor 
or  recorder  of  the  said  city,  either  of  whom  is  authorized  to  issue 
such  8ub|Mina,  under  his  hand  and  ])rivate  seal,  in  the  same  manner 
an  the  surrogate." 

^  75H.  Such  8ubj>a;na  shall  be  served  in  the  same  manner  as  in  civil 
causes,  and  if  any  person  shall  refuse  or  neglect   to  obey  the  same,  or 

'  '2  It  H  ir»2,  <jlA.  »  2  R.  H.  219,  (^63.  »  2  R.  8.  120,  ^9. 

M.                    Ihfd.  Lawn  lH;'.7,rh. 'ICO,  ^9.             Id.  301,  ^9,  Uli  od. 

1  2  U  «  2  K   S.  I2<i,  <,H.                          Laws  IHVJ,  ch.  30,  ^1. 

L*W!.  1-  >. ,  til   -100,  ^2.  Id.  303,  ^8,  illi  cd. 


nONDS  TAKKN  I'.Y  SflKRIFFS.  :}()1 

shall  refuse  to  answer  toucliiii^r  the  matters  hcreiii.ifter  mfntif)ne{l,  he 
shall  l)e  attached  and  cuininilted  to  prison  hy  the  sa'nl  surrogate  or 
other  ollicer  so  issuing  such  subptiina,  in  the  same  manner  as  for 
disobedience  of  any  citation  or  subpoena  issued  by  a  surrogate  in  any 
case  wiihin  iiis  jurisdiction.' 

^  759.  Upon  the  appearance  of  any  ])crson  so  subpoenaed  before 
such  surrogate  or  other  oflicer,  he  shall  be  sworn  truly  U)  answer  all 
(juestions  concerning  the  estate  and  ellects  of  the  deceased,  and  shall 
be  examined  fully  and  at  large  by  the  public  administrator,  in  relation 
to  the  said  effects.* 

^  7()0.  If,  ujKDn  any  inquiry  it  shall  ajipear  to  the  ofhcer  conducting 
the  same,  that  any  elFects  of  the  deceased  are  concealed  or  withheld, 
and  the  person  having  the  possession  of  such  property  shall  not  give 
the  security  required  by  law  for  the  delivery  of  the  same,  such  officer 
shall  issue  his  warrant,  directed  to  the  sheriff,  marshals  and  constables 
of  the  said  city  or  county  where  such  effects  may  be,  commanding  them 
to  search  for  and  seize  the  said  effects,  and  for  that  purpose,  if  neces- 
sary, to  break  open  any  house,  in  the  day  time,  and  to  deliver  the  said 
property  so  seized,  to  the  public  administrator,  which  warrant  shall  be 
obeyed  by  the  officers  to  whom  the  same  shall  be  directed  and  deliv- 
ered, in  the  same  manner  as  the  process  of  a  court  of  record.^ 

^  761.  If  any  of  the  effects,  whereof  the  county  treasurer  of  any  of 
the  counties  of  this  state,  as  public  administrator  of  such  county,  is 
authorized  to  take  charge,  shall  be  concealed  or  withheld,  he  shall  be 
entitled  to  the  same  process  from  the  surrogate  or  county  judge  of  the 
county,  to  discover  and  seize  the  same,  on  the  same  evidence  and  on 
the  like  terms,  as  the  public  administrator  of  the  city  of  Xew  York.^ 

ClIArXER  XL. 

BONDS  TAKEN  BY  SHERIFFS. 

^  762.  No  sheriff  or  other  officer,  shall  take  any  bond,  obligation 
or  security,  by  color  of  his  office,  in  any  other  case  or  manner  than 
such  as  are  provided  by  law ;  and  any  such  bond  obligation  or 
security,  taken  otherwise  than  as  herein  directed,  shall  be  void.*  This 
provision  of  the  statute  is  intended  to  prohibit  any  sheriff,  coroner, 
constable  or  officer  of  that  description'  from  taking  any  bond  as 
security  or  indemnity  against  any  neglect  of  official  duty;  or  for  the 
doing  any  act  which  he  is  not  authorized  to  do  or  perform  by  virtue 
of  his  office,  or  the  process  under  which  he  acts  ;  and  for  taking  any 

>  2  R.  S.  120,  ()10.  3  2  R.  S.  121,  <;12.  s  o  R.  S.  286,  <pS. 

Id.  304,  <)10,  4th  cd.  M.  304,  ()V2,  4th  cd.       Id.  473,  ()48,  4th  ed. 

a  2  R.  S.  120,  ^11.  4  2  R.  S.  12'.t,  ^)oO.  «  4  Barb.  52. 

Id.  304,  vll,  4th  ed.  Id.  312,  ^50,  4th  ed. 


302  nONDS  TAKKN  BY  SI  IF.  RIFFS. 

bond  from  any  party  as  an  indenuiily  or  security  ili:it  thr  p;iily  will 
do  or  perform  some  act  such  oHicer  is  not  auiliori/cd  to  re«|uiie  liiin 
to  door  perform.  In  every  such  case  the  houil  will  he  deemed  to  be 
taken  by  color  of  oflice,  which  implies  corruptly  and  unlawfully.  All 
such  bonds  are  held  void  from  considerations  of  public  policy,  IJut 
the  statute  does  not  declare  any  bond,  good  at  the  common  law 
invalid.  If  a  bond  is  not  prohibited  by  law,  and  is  not  taken  for  ease 
and  favor,  that  is,  as  a  consideration  and  indemnity  for  granting  to  a 
debior  or  a  prisoner  some  indulgence  or  privilege  he  is  not  by  law 
entitled  to,  nor  received  under  duress  or  oppression  or  illegal  exaction, 
it  will  not  be  void.' 

^  7G3.  The  bonds  or  securities  which  the  sherill"  may  take  are  the 
bonds  of  the  under  sherifl',  deputies  and  jailers  for  the  due  performance 
of  their  duties,  and  the  payment  to  the  sherifTof  his  pro|)ortion  c»f  the 
fees  of  the  oHice  ;'  the  bonds  or  indemnities  to  save  him  harmless 
for  acts  done  by  him  or  his  officers  under  and  pursuant  to  process  at 
the  request  of  the  party  issuing  such  process,  as  the  making  a  levy  or 
sale,  or  the  paying  over  money  where  there  is  a  dispute  as  to  the 
ownership  of  the  property  ;  the  bond  or  receii)t  of  a  "  receiptor"  or 
one  with  whom  he  leaves  the  defendant's  property  after  levy.'  But 
such  last  mentioned  bond,  receipt  or  undertaking  ought  not  to  provide 
for  any  liability  beyond  what  the  sherilV  is  liable  for  the  goods  upon 
the  execution.*  The  bond  or  undertaking  taken  on  the  arrest  of  a 
defendant  in  an  action  or  an  attachment,  or  for  the  liberties  of  the  jail, 
or  in  relation  to  the  delivery  of  personal  property,  and  such  bonds  as  he 
is  required  to  take  under  and  by  virtue  of  any  statute  in  any  special 
proceeding  or  matter.  A  bond  of  indemnity  to  a  sherilV  against  an 
escape  which  has  already  taken  place  is  good'  and  an  undertaking  in 
the  form  of  a  penal  bond  is  gooil  w  hen  it  contains  the  conditions 
required  by  the  Code.' 

3  701.  Any  bond  or  indemnity  taken  by  any  olTicer  to  indemnify 
him  against  an  action  for  neglect  of  duty  on  his  part,  is  void,^  as 
a  bond  conditioned  to  indemnify  him  against  an  action  for  not  taking 
one  to  prison  against  whom  he  has  a  capias;  or  where  it  is  taken  to 
indemnify  him  against  a  return  of  nulla  bona,  where  there  are  goods 
subject  to  the  execution."  So  of  a  j)romise  to  a  sherill*  to  indemnify 
him  against  all  damages  which  he  may  sustain  in  conse<|uence  of 
discharging  one   from   custody   on   legal   j)rocess.'     And   where  one 

•  23  Won't.  COfl.  «  5  Hill,  6R8.  ^  1  <',,in.  305. 

7  Jolifi.  Ut'J.  6  1  ('nines, -100.  »  7  JoJin.  160. 

2  John.  Ca.  246.  7  John    100.  »  I'.t  Wond    188. 

«  1  Hill,  21.  •  5  How.  3KG.  7  John.  100. 

»  21  Wend.  Of>6, 

23     "       00«. 


BONDS  TAKi:X   11 V  SI li: RIFFS.  .'i03 

arrested,  represents  to  the  shcrill'  that  the  attachrnent  on  \vhi(;h  he  is 
arrested  is  void,  and  iiroinises  to  iiidemnii'y  the  sherilV,  if  he  will  let 
him  go,  such  promise  is  void.'  And  so  is  any  agreement  with  a  sherill' 
by  which  a  party  under  arrest  is  permitted  to  go  at  lar^e,  uj.on  any 
terms  other  tiian  are  jMCScribed  by  statute.  IJut  it  is  otherwise  if  such 
agreement  is  made  with  the  party  in  interest  and  not  with  the  sherilT.' 
If  the  sheriir  takes  a  note  or  ch-aft  on  an  arrest,  as  security,  it  is  illegal 
and  its  transfer  is  void,^  and  if  taken  without  the  plaintilf's  assent,  it 
is  no  payment  or  satisfaction  of  the  judgment.*  But  if  the  plaintifl' 
treat  the  transaction  as  a  payment,  the  sherilV  or  the  plaintilf  may 
recover  on  the  security.  A  bond  taken  as  temporary  security,  where 
it  is  agreed  that  the  defendant  shall  furnish  other  bail,  is  void  ;  but  the 
sheriir  may  give  it  up  to  the  surety,  and  reiiuire  new  bail,  and  if  not 
given  he  may  arrest  the  defendant  and  confine  him  until  it  is  given.' 
Where  one  has  been  suflered,  voluntarily,  to  escape,  a  bond  given  by 
him  for  the  limits  on  being  retaken  is  void  for  duress."  A  bond  and 
warrant  to  the  sherift'  on  discharging  a  defendant  from  arrest  on  a 
capias,  together  with  additional  charges  of  the  sherifl'  as  jailer,  was 
set  aside  as  leading  to  abuse  and  oppression,  the  court  inclining  to  the 
opinion  that  the  bond  was  void  as  one  taken  by  color  of  ollice.^  And 
so  where  a  bond  for  the  limits  has  any  other  conditions  than  those 
prescribed  by  the  statute,  it  is  void.^  And  a  warrant  of  attorney 
given  simultaneously  with  the  bond  for  the  limits  authorizing  a  con- 
fession of  judgment  thereon,  is  void.*  A  bond  taken  in  a  penalty 
exceeding  one  hundred  dollars,  upon  an  arrest  upon  attachment 
without  any  order  fixing  the  bail  is  void,  as  taken  by  color  of  ollice.^" 
A  note  taken  by  the  sheriff  from  a  defendant,  under  a  threat  of  selling 
his  property  on  an  execution  then  in  his  hands,  which  he  owned,  but 
kept  that  fact  concealed  from  the  defendant  was  held  void  in  the 
sheriff's  hands.''  And  so  is  a  note,  taken  by  a  constable  as  security 
for  an  execution,  unless  it  is  ratified  by  the  plaintiff. ''■'  A  bond,  too,  will 
be  void  though  it  be  authorized  by  the  statute,  and  be  proper  in  form,  if 
the  condition  upon  which  it  might  be  required  did  not  exist. '^ 

^  7G5.  As  a  general  rule,  a  bond  taken  by  an  officer,  though  it  be 
authorized  by  the  statute,  will  be  void,  if  it  does  not  conform  to  the 
statute. '<  But  it  has  been  provided  by  statute,. that  whenever  a  bond 
is  or  shall  be  required  by  law  to  be  given  by  any  person,  in  order  to 
entitle  him  to  any  right  or  privilege  conferred  by  law,  or  to  commence 
any  proceeding,  it  shall  not  be  necessary  for  such  bond  to  conform  in 

1  19  Wend.  188.  s  7  Wend.  188.  >'  23  Wend.  314. 

8  Com.  188.    1  Com.  3C5.  «  15  John.  25G.  >2  1  Cow.  Tr.  440. 

s  1  Com.  3Go.  '  7  John.  319.  i3  1  Hill,  343. 

»  8  John.  98.  s  ly  John.  233.  H  1  Uill,  298. 

*  1  Cow.  4G.    4  Cow.  553.  » 1  Jolui.  Ca.  129. 

6    "     465,  "  21  AVcnd.  67. 


301  BONDS  TAKKN  HV  SIIICUIFFS. 

nil  respects  to  tlie  form  thereof  prcscribcil  by  any  statute,  but  the  same 
shall  be  cleemod  suiricient  if  it  conform  thorclo  substantially,  ami  do  not 
vary  in  any  matter,  to  the  prejudice  of  the  rights  of  the  party,  to  w  horn 
or  for  whose  l)enefit  such  bond  shall  have  been  j^iven.'  Whenever 
any  such  bond  is  defective  in  any  respect,  the  court,  olliccr  or  l^ody 
\vho  wouKI  be  authorized  to  receive  the  same,  or  to  entertain  any  pro- 
ceedings, in  consecpience  of  such  bond,  if  the  saine  had  been  j>erfect, 
may,  on  the  ap|>lication  of  all  the  obligors  therein,  amend  the  same  in 
any  res|>ect ;  and  such  bond  shall  thcreujion  be  deemed  valid  from  the 
time  of  the  execution  thereof."  It  was  formerly  necessary  in  a  rcj)levin 
bond,  to  have  two  sureties,  but  under  the  foregoing  provisions  of  the 
statute,  a  bond  with  one  surety  bus  been  held  pood.' 

<5  "/tJO.  Whenever  the  sherilfor  any  other  oflicer  is  authorized  or 
required  by  law  to  take  any  sureties  or  bail,  or  to  approve  any  sureties 
or  bail,  he  shall  be  authorized  to  administer  an  oath  to  every  person 
who  shall  be  offered  as  such  bail  or  surety,  to  ascertain  hissufliciency.* 

^  7<57.  It  is  provided  by  the  rules  of  the  supreme  court,  that  all 
bonds  and  undertakings  and  other  securities  in  writing,  shall  be  duly 
proved  or  acknowledged  in  like  manner  as  deeds  of  real  estate,  before 
the  same  shall  be  received  or  filed.'  Su(di  proof  or  acknowledgement 
must  be  made  or  taken  l)efore  some  oHiccr  authorized  to  take  the  proof 
or  acknowledgment  of  deeds. 

3  708.  The  residence  and  occupation  of  the  sureties  in  an  undertaking 
on  arrest  must  be  given,  and  whenever  bail  are  rcfjuired  to  justify,  they 
shall  justify  within  the  county  where  the  defemlaiit  shall  have  been 
arrested,  or  where  the  bail  reside." 

^  709.  The  bond  or  undertaking  (»n  the  arrest  of  the  defendant,  ninsl 
be  filed  with  the  clerk  of  the  court  in  which  the  acti<»n  is  pending,  and 
must  be  duly  proved  or  acknowledged  before  it  can  be  filed.  The 
undertakings  given  <»n  taking  personal  jiroperty  shall,  after  the  sureties 
have  justified,  be  delivered  by  the  sherill"  to  the  j)arlies  for  whose 
benefit  the  same  were  taken7 

^  770.   Whenever  any  shcriftis  required  by  law  to  assign  any  bond 

taken  by  him  in  the  j)rogress  of  any  cause  or  proceeding,  to  any  j)arty, 

and  the  olFice  of  such  sherill  shall    be  vacant,  his  under  shcrilF,  or  the 

'  I'-ting  in  the   place  of  such  sherilf,  is  authorized,  and   may  be 

I   lo  e\fcnt(!    such  assignment    in  the  name  of  the  sherilV  to 

'2n                                   «  :j  U.  8.  r)r,2,  <)'.».  <  liiii.s  Sup.  i'(.iirt,Hl. 

M  'I                   M.  7H;t,  <yl,  -Uh  c-«l.  Co.l.-,  <,l'j:\. 

'  II    ^                                                   U.viH..r'N   unU'H,  .!   II.  S.  0  IIuw.  I'r.  U.  117. 

M                                                        777,  'J.I  c.l.  T  Cod.-,  <y\2:l 

» 3  C-                                           »  Uulcji  »\\i>.  Court,  7'2.  Kuks  Huii.  Court,  72. 


ATTACHMENTS  TOR  CONTEMPT.  liUI) 

whom  sijrh  hond  was  given;  wliicli  assignment  sliall  \h'  as  valid  and 
enbctual  as  if  executed  by  sucli  slierill". ' 

CHAPTER   XTJ. 

ATTACHMENTS  FOR  CONTEMPT. 

^  771.  A  writ  ofattaclmient,  as  for  a  contemjit,  is  j)rocess  issued  by 
a  court  or  oflicer  of  competent  jurisdiction,  against  a  party  charged 
with  some  olVence  or  neglect  of  duty  in  tlie  nature  of  a  contempt,  by 
which  the  ofiicer  to  whom  the  same  is  directed  and  deHvered  for 
execution,  is  required  to  bring  such  party  before  such  ^ourt  or  officer, 
either  forthwith,  or  at  the  time  mentioned  in  such  writ,  that  he  may 
make  answer  to  the  matters  alleged  against  him.  Such  attachments 
are  in  some  cases,  purely  criminal  in  their  character,  but  they  are  more 
frequently  merely  civil  proceedings  for  the  purpose  of  enforcing  some 
civil  remedy. 

§  772.  When  the  attachment  is  issued  for  the  purpose  of  punishing 
a  party  as  for  a  criminal  contempt,  and  not  merely  as  a  means  of 
enforcing  a  civil  remedy,  it  is  criminal  process,  and  may  be  executed 
at  the  same  times  and  places,  and  in  the  same  manner  as  criminal 
process.  The  sheriff  to  whom  the  same  is  directed  and  delivered  for 
execution,  may  execute  the  same,  within  or  beyond  the  limits  of  his 
county,  in  the  day  or  in  the  night,  and  on  demand  that  they  be  opened, 
and  refusal,  may  break  open  all  doors  necessary  to  execute  the 
process.  To  authorize  the  execution  of  such  process  as  criminal  pro- 
cess however,  it  should  appear  upon  its  face  to  have  been  issued  as  such. 
Whenever  any  person  shall  be  committed  for  any  criminal  contempt, 
the  particular  circumstances  of  his  offence  shall  be  set  forth  in  the 
order  or  warrant  of  commitment.' 

^  773.  The  mode  of  proceeding  as  for  contempts,  to  enforce  civil 
remedies  and  to  protect  the  rights  of  parties  in  civil  actions,  is  pointed 
out  by  the  statute.  It  is  declared  therein,  that  every  court  of  record 
shall  have  power  to  punish,  by  fine  and  imprisonment,  or  either,  any 
neglect  or  violation  of  duty,  or  any  misconduct,  by  which  the  rights 
or  remedies  of  a  party  in  a  cause  or  matter  depending  in  such  court, 
may  be  defeated,  impaired,  impeded  or  prejudiced,  in  the  following 
cases : 

1.  All  attorneys,  counsellors,  solicitors,  clerks,  registers,  sheriffs, 
coroners,  and  all  other  persons  in  any  manner  duly  selected  or  aj^pointed 
to  perform  any  judicial  or  ministerial  services,  for  any  misbehavior  in 

»  2  R.  S.  286,  <j60.  2  2  R.  S.  278,  <)13. 

Id.  473,  ^49,  4th  ed.  Id.  467,  ^U,  4th  ed. 

40 


SOf)         ATTACHMENTS  FOR  CONTEMPT. 

siirh  office  or  trust,  or  for  any  wilful  noglecl  or  violation  of  duty 
tlieieiu  :  for  disobcMlifiu-e  tA'  any  jtroccssof  surh  court,  or  of  any  lawful 
onler  thereof,  or  «.»f  any  lawful  order  of  a  jud^c  f»f  such  rourt.or  of  any 
oMicer  nutliori/eil  to  perform  the  duties  of  such  judge  : 

2.  Parties  to  suits,  for  putting  in  fictitious  bailor  sureties,  or  for  any 
deceit  or  abuse  of  the  process  or  proceedings  of  the  court : 

3.  I'arlies  to  suits,  attorneys,  counsellors,  solicitors  and  all  other 
persons,  for  the  non-j):iynienl  of  any  sum  of  money  ordered  by  such 
court  to  be  paid  in  cases  where  by  law  execution  cannot  be  awarded 
for  the  collection  of  such  sum ;  and  for  any  other  disobedience  to  any 
lawful  order,  decree  or  process  of  such  court  : 

•1.  All  persons  for  assuming  to  be  oHicers,  attorneys,  solicitors  or 
counsellors  of  any  court,  and  acting  as  such  without  authority;  for 
resi-uing  any  property  or  persons,  which  shall  be  in  the  cust(»dy  of  any 
oflicer,  by  virtue  of  process  issued  from  such  court ;  for  unlawfully 
detaining  any  witness  or  party  to  a  suit,  while  going  to,  remaining  at, 
or  returning  from,  the  court  where  such  suit  shall  be  noticed  for  trial  ; 
and  for  any  other  unlawful  interference  with  the  process  or  proceedings 
in  any  action  : 

5.  All  persons  summoned  as  witnesses,  for  refusing  or  neglecting  to 
obey  such  summons,  or  to  attend  or  be  sworn,  or  answer,  as  such 
witness : 

(5.  Persons  summoned  as  jurors  in  any  court,  for  improperly  convers- 
ing with  any  party  to  a  suit  to  be  tried  at  such  court,  or  with  any  other 
person,  in  relation  to  the  merits  of  such  suit ;  for  receiving  communi- 
cations from  any  such  i^arty,  or  from  any  other  |>erson,  in  relation  to 
the  merits  of  any  such  suit,  without  immediately  disclosing  the  same  to 
the  court  : 

7.  All  inferior  magistrates,  officers  and  tribunals,  for  disobedience  of 
any  lawful  order  or  process  of  a  superior  court,  or  for  proceeding  in 
any  cause  or  matter  contrary  to  law,  after  such  cause  or  matter  shall 
have  been  removed  from  their  jurisdiction  :  and, 

8.  All  other  cases,  where  attachments  and  proceedings  as  for  con- 
tempts, have  been  usually  adopted  and  jiracticed  in  courts  of  record,  to 
enforce  the  civil  remedies  of  any  party  to  a  suit  in  such  court,  or  to 
protect  the  rights  of  any  such  partv.' 

2  771.  Under  the  [)rovisi(»ns  of  the  last  subdivision  of  the  preced- 
ing section,  it  has  been  held  that  whore  a  party  was  directed  to  deposit 
certain  books  in  the  master's  ollii'e,  with  liberty  to  the  adverse  jtarty 
to   inspect  and  take   extracts  Iron)  such   i>arts  as   related  to  certain 

,    2  J,     .;         •!     ,-, 

1  .h..i 

-  1       -     , 


ATTAcnMi«:NTs  FOR  conti:mi»t.  :{o7 

parlnersliip  transactions,  and  in  obedienfe  to  the  order  the  bof»ks  were 
deposited  in  the  master's  ollice  willi  the  parts  thereof  which  did  not 
relate  to  the  partnership  transactions  sealed  up  and  during  a  ien)po- 
rary  absence  of  the  master  the  adverse  party  who  was  ins|)ertin^'  the 
books,  broke  open  the  i)arts  which  were  so  scaled  up  and  which 
contained  private  memoramhi  and  remarks  of  the  party  who  deposited 
the  books,  in  relation  to  his  private  business,  that  the  act  of  such  party 
was  a  contemjtt  of  court,' 

g  775,  When  any  misconduct  punishable  by  fine  and  imprisonment, 
as  before  mentioned,  shall  be  committed  in  the  immediate  view  and 
presence  qf  the  court,  it  may  be  punished  summarily,  by  fine  or 
imprisonment,  or  both,  as  hereinafter  mentioned,*  The  jurisdiction  of 
courts  of  record  as  to  the  person  in  cases  of  commitment  l^>r  con- 
tempt, is  to  be  intended,  and  a  rule  of  such  court,  that  a  defendant 
be  committed  for  contempt,  need  not  recite  the  prior  proceedings.  If 
it  is  such  a  rule  as  the  court  might  legally  make  under  any  supposable 
state  of  circumstances,  all  jurisdicti(^nal  steps  and  matters  of  regularity 
are  to  be  presumed.  It  is  necessary  however  that  the  rule  for  com- 
mitment should  show  the  cause  thereof.  It  is  enough,  however,  that 
the  cause  be  substantially  stated,  though  without  technical  precision. 
Courts  of  record  may  commit  for  contempt  by  rule  merely,  without 
other  process,  though  inferior  courts  cannot  commit  without  a  regular 
warrant.^ 

(3  77G.  When  such  misconduct  is  nfll  so  committed,  the  court  shall 
be  satisfied  by  due  proof,  by  affidavit,  of  the  facts  charged,  and  shall 
cause  a  copy  of  such  affidavits  to  be  served  on  the  party  accused,  a 
reasonable  time  to  enable  him  to  make  his  defense  ;  except  in  cases  of 
disobedience  to  any  rule  or  order  requiring  the  payment  of  money 
and  of  disobedience  to  any  subpoena.'' 

^  777.  Where  any  rule  or  order  of  a  court  shall  have  been  made 
for  the  payment  of  costs,  or  any  other  sum  of  money,  and  proof  by 
affidavit  shall  be  made  of  the  personal  demand  of  such  sum  of  money, 
of  the  partv  himsell?  and  of  a  refusal  to  pay  it,  the  court  may  issue  a 
precept  to  commit  the  person  so  disobeying  to  prison,  until  such  sum 
and  the  costs  and  expenses  of  the  proceeding,  be  paid.  But  no  person 
shall  be  imprisoned  for  the  non-payment  of  interlocuting  costs,  or  for 
contempt  of  court  in  not  paying  costs,  except  attorneys,  solicitors  and 
counsellors  and  officers  of  courts,  when  ordered  to  pay  costs  for 
misconduct  as  such,  and  witnesses  w^hen  ordered  to  pay  costs  on 
attachment  for  nun-attendance.*     The  foregoing  provisions  prohibiting 

»  2  Paige,  294.  *  2.  R.  S.  535,  ^3.  6  2  R.  S.  535,  ^4. 

s  2  R.  S.  535,  <)5.  Id.  7G9,  (^3,  4th  ed.  Id.  769,  ^4. 

Id.  769,  ^2,  4tb  ed.  s  9  Paige,  609.  Laws  1847,  ch.  390,  $2. 
8  1  Hill,  156. 


308        ATTACHMENTS  FOR  CONTEMPT. 

the  irnprisonmeiit  of  any  i>er8ou  for  inlorloculing  costs  unless  in  the 
cases  therein  cxccptetl,  d«»es  nni  njiply  to  those  cases  of  eontenii)t 
where  a  j>arty  may  he  fineil  for  any  niisconiUict  productive  ol  un 
actual  loss  or  injury  to  the  other  party.' 

^  778.  Atlachnients  as  for  conlctiipls  as  a  means  of  enforcing  a 
civil  remedy,  are  mo.sl  fre(|uenlly  resorted  to  in  the  case  of  witnes.ses 
who  neglect  to  apj>ear  in  pursuance  of  a  .subpoena  ;  and  against  sheriffs 
aud  other  officers  who  fail  to  execute  process  or  make  return  thereof, 
according  to  the  command  of  such  process.  Tlie  mode  of  proceeding 
in  the  case  of  a  witness  who  makes  default,  has  already  been  pointed 
out.* 

^  110.  In  all  other  ca.^e.s  than  those  of  di.sobedience  to  a  rule  or 
order  recjuiring  the  payment  of  money,  and  of  disobedience  to  a  sub- 
poena, and  where  the  misconduct  is  not  committed  in  view  and 
presence  of  the  court,  the  court  shall  either  grant  an  order  on  the 
accused  party,  to  show  cause  at  some  reasonable  time  to  be  therein 
specified,  why  he  should  not  be  punished  for  the  alleged  misconduct  ; 
or  shall  issue  an  attachment  to  arrest  such  party,  and  to  bring  him 
before  such  court,  to  answer  for  such  misconduct.' 

^  780.  The  Revised  Statutes  declare  that  where  a  rule  shall  have 
been  entered  in  any  court,  according  to  the  practice  thereof,  requirmg 
any  officer  or  other  person  to  whom  any  process  of  such  court  may 
have  been  directed  and  delivered,  to  return  the  same,  an  attachment 
for  disobedience  of  such  rule%iay  issue  according  to  the  course  and 
practice  of  the  court,  to  arrest  such  offit;er  or  other  person,  to  answer 
for  such  disobedience  without  special  application  to  the  court.*  The 
I)ractice  of  the  courts,  however,  as  now  settled,  does  not  permit  of  the 
issuing  an  attachment  in  any  such  case  without  special  ai)plication  to 
the  court.  Rule  six  of  the  rules  of  the  supreme  court  provides  that 
at  any  time  after  the  day  when  it  is  the  duty  of  the  sheriff  or  other 
officer  to  return,  deliver  or  file  any  process,  undertaking,  order  or 
other  paper,  by  the  provisions  of  the  Code  of  procedure,  any  party 
entitled  to  have  such  act  done,  may  serve  on  the  officer  a  notice  to 
return,  deliver  or  file  such  i)rocess,  undertaking,  order  or  other  paper 
as  the  case  may  be,  within  ten  days ;  or  show  cause  at  a  special  term 
to  be  designated  in  said  return,  why  an  attachment  should  not  bo 
issued  against  him.' 

^  781.  Such  notice  must  be  served  personally  on  the  sheriff,  or  if 
he  cannot  be  found,  then  it  may  bo  left  at  his  office  at  any  hour  during 
which  the  same  is  by  law  required  to  be  kej)t  open.     If  any  person 

«  2  Barb  J^'W,  ♦  II  R.  8.  636,  ^0.  »  Rules  Sup.  Court,  6. 

*  Af.'  '  IJ.  770,  ^0, -Ith  cd.  Code  6419. 

»  U  K 

Id.  i'y','/\  »ii»  cd. 


ATTACHMENTS   1-OR   COiNTliMrT.  3U9 

bclon<Ting  to  the  onicc  be  therein,  such  notice  or  ]):iiter  shull  be 
dehverecl  to  such  person;  and  every  such  service  sliall  Ijc  deemed 
equivalent  to  a  personal  service  on  such  sherifl*.  If  no  notice  shall 
have  been  fded  by  any  sherifT  with  the  county  clerk,  of  the  i>la<re  of 
such  oflice  as  re(iuired,  the  service  of  the  notice  on  such  sherilV  may 
be  made  by  leaving  it  at  the  ofTice  of  the  county  clerk,  with  such  clerk 
or  his  deputy  ;  and  the  same  shall  be  deemed  equivalent  to  a  jiersonal 
service  on  such  sherilV.'  Service  of  such  notice  upon  the  under  sherifl' 
or  upon  a  deputy  of  the  sherifT,  although  he  be  the  party  in  default, 
will  not  be  a  good  service  to  bring  the  sherifT  into  contempt.  And 
when  an  action  has  been  commenced,  service  of  any  such  notice  on 
the  attorney  for  the  sherifT  will  not  be  sufficient  for  that  purpose.^  It 
must  be  made  upon  the  sherifT  personally,  or  in  the  manner  herein 
before  pointed  out. 

^  782.  If  the  sherifT  have  any  suflicient  excuse  for  not  making  the 
return  as  required  by  law,  or  have  any  valid  defence  to  the  aj)i)rK-ation 
for  an  attachment  for  such  neglect,  he  should  appear  before  the  court 
in  person  or  by  attorney  on  the  day  designated  in  such  notice,  and 
present  such  excuse  or  defence  by  affidavit  in  answer  to  tiie  motion 
for  an  attachment.  Thus,  if  the  paper  or  process  which  he  is 
required  to  return,  has  never  come  to  his  hands,  or  the  hands  of  his 
deputy,  he  must  show  such  fact  by  affidavit,  and  it  will  be  a  good 
answer  to  the  application.  So  if  there  be  a  stay  of  proceedings,  by 
reason  of  which  the  execution  of  the  process  could  not  be  executed 
by  the  return  day ;  or  if  there  has  been  delay  in  consequence  of  the 
party  seeking  the  return,  or  his  attorney  ;  or  if  the  officer  has  been 
sick  so  that  he  could  not  execute  and  return  the  process  ;  or  where 
the  process  is  in  the  hands  of  a  special  deputy,  appointed  by  the 
sherifT  at  the  request  of  the  party  seeking  to  enforce  the  return  ;  or 
where  the  parties  to  the  execution  have  compromised  before  the  sale, 
or  any  other  like  valid  excuse,  it  should  be  set  up  by  way  of  answer 
to  the  application  for  an  attachment.^  It  will  not  be  an  answer, 
however,  to  any  such  ai)plication,that  the  process  was  not  received  by 
the  sherifT  himself,  but  by  a  deputy.*  Nor  is  it  a  good  answer  that  the 
defendant  in  the  action  in  which  the  execution  issued,  had  sued  out  a 
writ  of  error  to  reverse  the  judgment,  unless  there  was  a  stay  of 
proceedings.^  Nor  that  the  statute  of  limitations  barred  an  action 
against  the  sherifT  for  not  returning  the  process.  Though  such  be  the 
fact,  the  sheriiT  may  still  be  compelled  to  return  it.*  Delay,  unless 
there  has  been  gross  negligence,  to  the  prejudice  of  the  sherifl',  will  not 
be  a  valid  excuse.'^     If  the  sherifT  has  no  valid  excuse  for  not  rctum- 

»  Ante,  ^23.  "G  Cow.  41.  «  4  Hill,  71. 

8  Code,  ^418.  5  9  Wend.  224.  i  Scwell,  421. 

»  Ante,  ^422. 


310  ATTACflMKXTS    FOR  CONTRMPT. 

ing  the  process,  at  the  iin>i)cr  time,  he  should  do  so  as  soon  as  he  is 
notified  to  return  tlie  same,  and  give  the  party  notice  thereof.  If  he 
does  so  before  the  time  at  which  he  is  riMjuired  tti  show  cause,  no 
attachment  will  be  granted.  But  if  the  jmrty  iuis  suflered  injury  by 
such  neglect,  he  will  seek  his  remedy  by  action. 

^  7S3.  If  the  sherilfhas  no  valid  excuse  for  not  returning  the  paper 
or  process  ;  and  if  he  neglects  tt^>  return  the  same  before  the  time  at 
which  he  is  required  to  show  cause  why  an  attachment  should  not 
issue  against  him  fur  such  neglect,  the  court  at  which  he  is  so  recpiired 
to  show  cause,  on  due  proof  of  the  service  of  the  notice  upon  such 
sherilf,  and  of  such  motion,  and  of  the  default  of  the  sheriff  to  make 
such  return,  will  grant  an  attachment  against  him  to  bring  him  up,  in 
order  that  he  may  be  punished  for  such  contempt. 

^  781.  When  the  atta<luiient  is  so  issued  by  the  special  order  of  the 
court,  a  certificate  to  that  ellect  shall  be  indorsed  thereon  by  the  clerk 
of  the  court.'  And  the  court  shall  dirci-t  the  jienalty  in  which  the 
defendant  shall  give  bond  for  his  appearance  to  answer.'  Such  order 
is  indorsed  on  the  attachment,  and  is  signed  by  the  jircsiding  judge  of 
the  court.' 

(5  785.  When  the  attachment  is  against  the  old  sheriff,  or  any  other 
person,  it  is  issued  to  the  present  sherifl',^  even  though  lie  was  a  party 
to  the  original  proceedings.  If  it  is  against  the  present  sheriff  it  is 
issued  to  one  of  the  coroners  of  the  same  county.*  If  the  attachment 
be  against  one  for  disobedience  to  a  subpoena,  it  may,  as  has  been 
already  seen,  be  issued  to  the  sheriff  of  the  county  where  the  court  is 
sitting,  who  may  execute  the  process  in  any  part  of  the  state.*  But 
in  all  other  cases,  the  attachment  should  be  issued  to  an  ofticer  of  the 
county  where  the  party  in  contempt  may  be.  In  the  case  of  attach- 
ments issued  by  surrogates'  courts,  it  is  jirovided  by  statute  that  the 
process  shall  be  so  issued.* 

<5  78G.  Writs  of  attachment,  though  they  are  in  form  criminal 
process,  cannot  be  executed  like  criminal  process.  They  are  said  to 
be  analogous  to  mesne  process,  and  the  same  rules,  so  far  as  they  can 
Ije  apjilicable,  govern  their  execution.  They  may  be  served  in  the  night 
or  day,  but  not  upon  Sunday,  nor  can  the  outer  door  of  a  dwelling  be 
broken  o|»en  to  come  at  the  party  to  make  the  arrest. 

3  7H7.  Upon  arresting  any  defen<lant  upon  an  attachment  to  answer 
for  any  alleged  misconduct,  if  no  sum  be  specified  in  which  the  defendant 
shall  be  held  to  bail  on  such  writ,  he  shall  not  be  entitled  to  be  dis- 
charged from  the  arrest  thereon  uj)on  executing  any  bond,  or  in  any 

«  2R.  8.  637,  <>H.  »  23  Wnxl.  112.                       »  Ante,  6186. 

Ifl.  770,  <>J4,  Ith  (.1.  «  2  n.  S  411,  (>84.                    •  Ante,  ^740. 

«  2  R.  H  MO,  go.  1. 1   r,sM,  C^luf,  4th  cd. 

Id.  770,  go,  4th  cd.  Cxk,  4ly. 


ATTACHMENTS  Full  CONTEMPT.  311 

otiior  manner  unless  upon  the  spt-cial  order  of  llic  court  issuing'  the 
attachnieiit,  but  tlie  ollicer  making  the  arrest  shall  keep  the  defendant 
in  his  actual  custody,  and  shall  bring  him  personally  before  the  court 
issuing  the  attachment ;  and  shall  keep  and  detain  him  in  his  custody, 
until  such  court  shall  have  made  some  order  in  the  jiremises.'  If  such 
sum  be  indorsed  on  the  writ,  the  defendant  may  be  discharged  upon 
executing  the  bond  as  hereinafter  mentioned.'^ 

g  788.  Whenever  an  ollicer  is  required  to  keep  any  person  arrested 
upon  attachment,  in  actual  custody,  and  to  bring  him  personally  before 
any  court,  the  inal)ility  from  sickness  or  otherwise,  of  such  person  to 
attend  such  court  personally,  shall  be  a  suirKuent  excuse  for  not  bring- 
ing him  before  such  court.  Nor  shall  any  such  officer  be  retjuired  in 
any  case,  to  confine  any  person  arrested  upon  an  attachment  to  answer 
for  misconduct,  in  any  prison,  or  otherwise  to  restrain  him  of  his 
personal  liberty,  except  so  far  as  shall  be  necessary  to  secure  his  per- 
sonal attendance.  Jurisdiction  of  the  person  once  acquired,  by  arrest 
under  an  attachment  for  contempt,  continues  while  the  case  is  under 
execution,  whether  the  defendant  remain  in  actual  custody  or  not.' 

g  789.  It  has  already  been  seen  that  a  party  charged  with  contempt, 
who  is  in  custody,  may  be  brought  up  on  habeas  corpus  to  answer  for 
such  contempt.^ 

g  790.  In  cases  where  a  sum  shall  have  been  indorsed  on  any  attach- 
ment issued  by  the  special  order  of  the  court,  the  defendant  shall  be 
discharged  from  arrest  on  such  attachment  on  executing  and  delivering 
to  the  officer  making  the  same,  at  any  time  before  the  return  day  in 
such  writ,  a  bond,  with  two  sufficient  sureties,  in  the  penalty  indorsed 
upon  such  attachment,  to  such  officer,  by  his  name  of  office  and  his 
assigns,  with  a  condition  that  the  defendant  will  appear  on  the  return 
of  such  attachment,  and  abide  the  order  and  judgment  of  the  court 
thereupon.'^  It  is  the  officer's  duty  to  prepare  the  bond  in  such  case, 
as  by  the  sheriff  on  arrests  on  mesne  process.^  And  it  is  also  his  duty 
to  see  that  the  sureties  are  sufficient,  otherwise  he  may  be  liable  to  the 
party  aggrieved,  for  the  damages  he  may  sustain,  should  they  prove 
otherwise.''  On  returning  the  attachment,  the  officer  executing  the 
same  shall  return  the  bond  taken  of  the  debt,  which  shall  be  filed  with 
such  attachment.^ 

g  791.  The  sheritr  or  other  officer,  to  whom  any  attachment  shall 
be  delivered  for  execution,  shall  return  the  same  by  the  return  day 

>  2  R.  S.  537,  <)<)12-U.  3  2  R.  S.  540,  \)37.  «  .3  Paige,  85. 

Id.  770,  (i^)12-14,  4th  cd.  Id.  773.  (>37,  4th  cd.  ^  Post,  (^SOl. 

]  Hill,  154.  1  Hill,  154.  s  2  R.  S.  537,  ^16. 

a  Post,  (udO.  *  Ante,  </yl9.  Id.  771,  ^U,  4th  cd. 

5  2  R.  S.  537,  ^1-3. 
Id.  770,  ^13,  4tb  cd. 


312  A'rTA('IIMi:NTS  rOR  COXTHMPT. 

spofilied  llicrciii,  witlioul  any  piwious  rule  or  order  for  lliat  purpose. 
If  the  defendant  lias  been  released  upon  the  giving;  a  boml  as  herein 
before  mentioned,  such  nttnchmenl  and  bond  are  usually,  in  practice, 
returned  directly  to  the  attorney  who  issued  the  writ  ;  but  the  more 
regular  course  would  be  to  return  the  same  to  the  clerk  of  the  court, 
before  which  the  same  is  returnable.  If  the  defendant  is  not  entitled 
lo  be  discharged  nu  giving  a  bail,  or  if  he  neglects  or  refuses  so  to  do, 
the  sheritV  or  ollicer  must  bring  such  defendant  jjersonally  before  the 
court,  and  make  return  to  the  court,  of  his  proceedings  under  the  writ. 

^  792.  In  case  of  default  in  returning  the  writ,  an  attachment  may 
be  issued  against  such  ollicer  of  course,  upon  being  allowed  by  a  judge 
of  the  court,  or  by  some  ollicer  authorized  to  perform  the  duties  of 
such  judge,  upon  proof  of  such  default ;  and  in  such  allowance,  the 
cause  of  issuing  the  same  shall  be  stated,  and  that  the  defendant  is 
not  to  be  discharged  upon  bail,  or  in  any  other  manner  but  by  the 
order  of  the  court.'  Though  the  attachment  be  returnable  at  a  par- 
ticular hour,  the  officer  holding  it  is  not  compelled  to  return  it  at  the 
hour,  except  by  order  of  the  court,  if  he  be  present.  If  he  is  absent, 
an  order  of  course  for  an  attachment  will  be  irregular  if  entered  before 
the  adjournment  of  the  sittings  of  the  day.' 

5  7fl3.  Under  the  old  practice,  where  the  sherifl'  was  attached  for 
not  returning  an  execution,  or  any  other  default  in  the  discharge  of 
the  duties  of  his  office,  he  had  four  days  in  term  after  the  return 
day  of  the  attachment  against  him  to  appear  and  answer  thereto.'  It 
was  necessary  that  he  should  be  called  twice  in  full  term,  on  the  two 
non-enumerated  motion  days  next  succeeding  or  including  the  return 
dav,  before  any  bond  given  by  him  on  his  arrest,  could  be  ordered  to 
be  prosecuted.*  The  Code  of  procedure  and  rules  of  the  supreme 
court  have  changed  the  [nactiee,  however,  in  such  a  manner  as  to 
render  it  impossible  to  follow  the  former  co\use.  Now  attachments 
in  the  supreme  court  must  be  made  returnable,  not  as  formerly,  at  a 
general  term  thereof,  but  at  a  sjiecial  term,  in  which  there  are  no  non- 
enumerated  motion  days.  The  course  pursued  in  the  dillerent  dis- 
tricts, is  not  well  defined,  but  it  would  seem  clear  that  no  order  to 
prosecute  the  bond  would  be  valid  licforc  the  close  of  the  silting  of 
the  court  on  the  return  day  of  the  attachment. 

^  791.  When  any  defendant  arrested  upon  an  attaclmient,  shall  have 
been  brought  into  court,  or  sh.'dl  have  ap]»eared  therein,  if  he  does  not 
admit  the  contempt,"  the  court  shall  <'ause  interrogations  to  be  filed, 
sjjccifying  the  facts  and  circumstances  alleged  against  the  defendant, 

1  2  R.  8.  WT,  <^\l.  a  7  PiiiRC,  433.  «  20  Woml.  HI 2. 

M,  771,  (,17,  -llh  c«l.  a  3  Wund.  423.  »  '.)  Paige,  372. 

3  I'aigc,  b5. 


ATTACHMENTS  POIl  CONTIvMPT.  '^]:^ 

and  requiring  his  answer  tlicrelo  ;  to  wliich  the  defendant  shall  make 
written  answers  on  oath,  within  such  reasonable  time  as  the  court  shall 
allow.  The  court  may  receive  any  aflidavits  or  other  proofs,  contra- 
dictory of  the  answers  of  the  defendant,  or  in  confirmation  thereof; 
and  upon  the  original  aflulavits,  such  answers  and  such  suhserjuent 
proof,  shall  determine  whether  the  defendant  has  been  guilty  flf  the 
misconduct  alleged.' 

^  795.  If  the  court  shall  adjudge  the  defendant  to  have  been  guilty 
of  the  misconduct  alleged,  and  that  such  misconduct  was  calcidated 
to,  or  actually  did  defeat,  impair,  impede,  or  prejudice  the  rights  or 
remcflies  of  any  party  in  a  cause  or  matter  depending  in  such  court,  it 
shall  proceed  to  impose  a  fine  or  to  imi)rison  him,  or  both,  as  the  nature 
of  the  case  shall  require;  but  the  court  may,  in  its  discretion,  (in  case 
of  inability  to  perform  the  requirements  imposed.)  relieve  the  person 
or  persons  so  imprisoned,  in  such  manner  and  upon  such  terms  as 
they  shall  deem  just  and  proper.^ 

g  790.  If  an  actual  loss  or  injury  shall  have  been  produced  to  any 
party,  by  the  misconduct  alleged,  a  fine  shall  be  imposed  sufficient  to 
indemnify  such  party,  and  to  satisfy  his  costs  and  expenses,  which  shall 
be  paid  over  to  him  on  the  order  of  the  court.  And  in  such  case  the 
payment  and  acce]itancc  of  such  fine,  shall  be  an  absolute  bar  to  any 
action  by  such  aggrieved  party  to  recover  damages  for  such  injury  or 
loss.  In  all  other  cases  the  fine  shall  not  exceed  two  hundred  and  fifty 
dollars,  over  and  above  the  costs  and  expenses  of  the  proceedings.' 

^  797.  When  the  misconduct  complained  of,  consists  in  the  omission 
to  perform  some  act  or  duty,  which  it  is  yet  in  the  power  of  the 
defendant  to  perform,  he  shall  be  impiisoned  only,  until  he  shall  have 
performed  such  act  or  duty,  and  paid  such  fine  as  shall  be  imposed,  and 
the  costs  and  expenses  of  the  proceedings.  In  such  case  the  order  and 
process  of  commitment  shall  specify  the  act  or  duty  to  be  performed, 
and  the  amount  of  the  fine  and  expenses  to  be  paid.^ 

^  798.  In  all  other  cases,  where  no  special  provision  is  otherwise 
made  by  law,  if  imprisonment  be  ordered,  it  shall  be  for  some  reason- 
able time,  not  exceeding  six  months,  and  until  the  expenses  of  the 
proceedings  are  paid  ;  and  also  if  a  fine  be  imposed,  until  such  fine  be 
paid  ;  and  in  the  order  and  process  of  commitment,  the  duration  of  such 
imprisonment  shall  be  expressed.^ 

^  799.  If  a  defendant  against  whom  an  attachment  shall  have  been 
issued  and  returned   served,  do  not  appear  on  the  return  dav  thereof 

1  2R.  S.  537,  ^19.  3  2R.  P.  5:lS,  VV'21,22.  s  2  R.  S.  638,  (y2.5. 
Id.  771,  <^1'J,  4th  cd.                 Id.  771,  <)(y2l,  22,  4th  cd.         Id.  772,  C)25,  4tli  od 

2  2  R.  S.  538,  ^20.  i  2  R.  S.  538,  ^(^23,  24. 

Id.  771,  ^20,  4th  cd.  Id.  772,  §^23,  24,4th  cd. 

Laws  1843,  ch.  'J,  ^1. 

41 


314  ATTAriTMRNTS  FOR  CONTEMPT. 

the  court  mny  either  award  another  atlarhmcnt,  or  may  order  the  bond 
taken  on  the  arrest  to  he  proseruled,  or  both.  Such  ordor  shall  operate 
as  an  assij^nnient  t<i  thr  hond  to  any  agt^rieved  ]>arty  who  shall  he 
authorized  hy  the  court  to  jirosccutc  the  same,  and  such  party  may 
maintain  an  action  thereon  in  his  own  name,  as  assiuMiee  of  the 
sheritl'  or  ofli(*er  to  whom  the  same  was  given,  in  the  same  manner  as 
in  other  anions  on  bonds,  with  conilition  to  perform  covenants 
other  than  for  the  jiaymrnt  of  money.  The  measure  of  damages  to  be 
assessed  in  such  action,  shall  be  the  extoiil  of  the  loss  or  injury  sus- 
tained by  such  aggrieved  party,  by  reason  of  the  misconduct  for  which 
the  attachment  was  issued,  and  his  costs  and  expenses  in  prosecuting 
such  attachment.' 

^  800.  If  there  l)e  no  party  aggricvo<l  by  the  misconduct  for  which 
the  attachment  was  issued,  the  court,  in  case;  the  dclcndant  shall  fail  to 
aj^j^ear  according  to  the  condition  of  the  bond  taken  on  the  arrest,  shall 
order  the  same  to  be  prosecuted  by  the  attorney  general  or  by  the 
district  attorney  of  the  county  in  which  the  bond  was  taken,  in  the 
name  of  the  oflicer  who  took  such  bond.  In  such  case  the  whole 
penalty  of  the  bond  shall  be  forfeited  and  recovered,  and  from  the 
moneys  collected  thereon,  the  court  shall  order  such  sum  to  be  paid  to 
the  party  pros<?cuting  the  attachment  as  the  court  ordering  the  pros- 
ecution shall  think  proper,  to  satisfy  the  costs  and  expenses  incurred 
by  him,  and  to  compensate  him  for  any  injury  he  may  have  sustained 
by  the  mis<;onducl  for  which  such  attachment  was  issued,  and  the 
residue  of  such  moneys  shall  be  paid  into  the  treasury  of  the  state.* 

^  801.  If  on  the  return  of  executions  duly  issued  upon  any  judg- 
ment obtained  on  such  bond,  it  shall  appear  that  the  sureties  taken 
therein  were,  at  the  time  of  taking  them,  insullicicnt,  and  that  the 
ofiicer  receiving  them  had  reasonable  grounds  to  doubt  their  sufficiency, 
he  shall  be  liable  in  an  action  on  the  case,  to  the  party  aggrieved,  who 
may  have  prosecuted  such  suit,  for  the  amount  of  the  judgment 
recovered  by  him,  and  for  his  costs  and  expenses  in  such  suit ;  or  if 
such  suit  was  brought  by  the  attorney  general,  or  a  district  attorney, 
an  action  on  the  case  may  in  like  manner  be  brought  by  them,  in  the 
name  of  the  people  of  this  state,  for  the  amount  of  the  judgment  so 
reci^vercil ;  and  the  same  disposition  of  the  moneys  collected  in  such 
action  <>u  the  ca.se  against  such  officer,  shall  be  made  as  directed  in 
the  last  section.* 

^5  802.  Persons  jiroreeded  against  inider  the  |>rovisions  of  the  statute 
concerning  proceedings  as  for  contempts,  to  enfor«'e  civil  remedies 
and   to  protect   the  rights  of  parties  in   civil   actions,  shall,  notwith- 

•  2.  n.  fl.  639,  (/>27-'2'J.  »  2  R.  H.  6S9,  ^^30,  31.  »  2  It.  8.  589,  <>82. 

Id  772,  <>27-2y,  ilh  cd.  Id.  772,  <;V.'K»,  '.'A,  Uh  ed.         Id.  772,  ^.'J2,  Itb  cd. 


ATTACHMENTS  FOR  CONTHMPT.        315 

standing,  be  li:il)lo  t«»  indifUMciit  for  the  same  misconduct,  it  it  be  an 
indictable  oflence  ;  but  the  court  btrfore  whifdi  a  conviction  shall  Ijo 
had  on  such  indictment,  sliall  taiu'  into  consideration  the  punishmcnl 
before  iiillicted  in  i'orming  its  sentence.* 

^  803.  When  any  misconduct  which,  by  the  jtrovisions  of  the  said 
statute  may  be  punished  by  fine  or  imprisonment,  shall  have  occurred 
at  any  cir<'uit  court,  or  in  reference  to  any  process  or  proceedings 
pending  in  or  returnable  to  such  court,  and  which  shall  not  have  been 
punished  by  such  court,  the  supreme  court  shall  have  the  same  juris- 
diction and  power  to  incjuire  into  and  punish  the  same  as  if  such 
misconduct  had  occurred  in  the  supreme  court,  or  in  reference  to  any 
process  or  proceedings  thereon.'^ 

^  801.  When  the  sherill*  is  attached  for  not  returning  an  execution, 
and  he  is  fined  the  amount  thereof,  if  he  would  protect  himself  against 
loss,  he  should  at  the  time  of  the  imposition  of  the  fine,  apply  to  the 
court  that  he  be  subrogated  in  the  place  of  the  jilaintilF  in  the  execu- 
tion, or  for  such  other  relief,  as  under  the  circumstances  of  the  case 
he  may  be  entitled  to.  If  it  is  not  a  wilful  and  corrupt  case  of 
misconduct,  proper  relief  will  be  granted.  But  if  the  money  is  paid 
in  pursuance  of  the  order  of  the  court,  without  some  relief  of  the 
kind,  the  sheriff  will  be  without  remedy.  The  payment  of  the  fine 
will  be  a  satisfaction  of  execution,  and  the  sheriff  will  not  be  entitled 
to  recover  the  amount  of  the  defendant.  And  if  he  takes  an  assign- 
ment of  the  judgment,  or  procures  another  to  do  so  for  his  benefit,  it 
is  questioned  whether  he  could  enforce  it.^ 

CHAPTER  XLII. 

ACTIONS  BY  SHERIFFS. 

^  805.  Sheriffs,  coroners  and  constables  may  maintain  an  action  for 
the  recovery  of  the  fees  to  which  they  may  be  entitled  by  law,  for  any 
service  performed  by  them.  If  no  fee  is  prescribed  by  law  for  the 
particular  service,  and  they  are  not  required  to  discharge  the  duty 
without  comjiensation,  then  they  are  entitled  to  recover  a  reasonable 
compensation  therefor.^  And  such  action  may  be  maintained  either 
against  the  party  for  whom  the  service  was  rendered,  or  against  his 
attorney  in  the  action  or  proceeding."  But  if  the  officer  elects  to  look 
to  the  attorney  exclusively,  and  gives  him  the  whole  credit,  he  cannot 
afterwards  resort  to  the  party.*     In  an  action  for  his  fees,  the  officer's 

1  2  R.  S.  538,  (yZG.  3  1  Kornan,  61.  s  5  Jolm.  252. 

Id.  772,  <ylG,  4th  cd.  <  9  John.  328.                                <i  Jolm.  125. 

9  2  R.  S.  530,  <>33.  2  S.iiidf.  742.                              4  Wend.  479. 

Id.  773,  <>33,  4tb  cd.  1  Cow.  Tr.  140.  « 'j  John.  114. 


316  ACTIONS  i;v  .SIIF.UIFFS. 

reliun  lo  the  process  will  be  I'liina  facie  eviileia-c  thai  the  service  was 
rciulcreiiraiul  of  the  amount  of  fees,'  IJul  an  ollirer  cannot  maintain 
an  action  on  a  promise  of  extra  compensation  for  extra  services, 
aliht)ugh  he  renders  services  lieyond  what  was  legally  rc(juired  of 
him."  This  is  so,  however,  only  in  the  cases  where  a  fee  certain  is 
given  for  llie  service,  and  not  where  the  oH'icer  is  entitled  to  a  rcasou- 
ublo  oomj>ensntion  for  his  services,  as  he  is  in  all  cases  where  no  fee  is 
fixed  by  law,  or  he  is  not  i>rohibited  from  receiving  comi>ensaiion 
therefor.''  Where  the  otlicer  attaches  properly  by  direction  of  the 
creditor,  and  thereby  makes  himself  personally  liable  for  the  charges 
for  the  storage  thereof,  he  may  recover  the  same  of  the  creditor.* 

^  60(3.  When  any  person  shall  usurp,  intrude  into  or  unlawfully  hold 
or  exercise  the  office  of  sheriff,  coroner  or  constable,*  an  action  may 
be  brought  by  the  attorney  general  in  the  name  of  the  i)cople  of  the 
stale,  upon  his  own  information,  or  upon  the  relation  or  information  of 
the  person  having  an  interest  in  the  question,  whose  name  in  such  case 
shall  be  joined  with  the  people,  as  plaintiff.*  In  addition  to  the  state- 
ment of  the  cause  of  action,  there  may  also  be  set  forth  in  the  com- 
plaint, the  name  of  the  person  rightfully  entitled  lo  the  office,  with  a 
statement  of  his  right  thereto,  and  upon  proof  by  affidavit,  that  the 
defendant  has  received  fees  or  emoluments  belonging  lollie  ollice,  and 
by  means  of  his  usurpation  thereof,  an  order  may  be  granted  by  a 
judge  of  tlie  supreme  court,  for  the  arrest  of  such  defendant,  and  holding 
him  to  bail,  and  thereupon  he  shall  be  arrested  and  held  lo  bail,  in  the 
manner  and  with  the  same  effect,  and  subject  to  the  same  rights  and 
liabilities,  as  in  other  civil  actions,  where  the  defendant  is  subject  to 
arrest.^  In  every  such  case,  judgment  shall  be  rendered  upon  the 
right  of  the  defendant,  and  also  upon  the  right  of  the  jmrty  so  alleged 
to  be  entitled,  or  only  upon  the  right  of  the  defendant,  as  justice  shall 
require.*  If  the  judgment  be  rendered  for  the  person  so  claiming  the 
office,  he  shall  recover  costs,"  and  shall  be  entitled,  after  taking  the  oath 
of  office,  and  executing  the  official  bond  to  lake  upon  himself  the 
execution  of  the  office,  and  he  may  obtain  po.ssession  of  the  books  and 
jtapers  belonging  to  the  office  in  the  manner  heretofore  pointed  out.'" 
And  he  may  recover,  by  action,  the  damages  which  he  shall  have 
sustained  by  reason  of  the  usurpation  by  the  defendant,  of  the  ollice." 
In  adtlition  to  a  judgment  of  ouster  and  for  costs  upon  the  information, 
the   court  may  also,  in   its   discretion,  fine   such  defendant  a  sum  not 

1  C«.w.  &,  Hill  «  n..tc«,  1093.  «  3  (MihIi.  Mb.  ">  Ante,  <>R,  002. 

»  2  U.  H.  0.V),  </).  »  C.«U-,  ^|:{2,  sub.  1.  ('«uk-,  (/yVM ,  4!». 

M.  KVJ,  (/>,  \\.\i  H.  •  r. ,-!.•,  LVM.  1  U.  S.  121,  k^()MW. 

16  WcikI.  44.  •»  <"'"1'-.  Viafi.  M.  'Mb,  <\(;0(t-00,  lib  cd. 

>  0  Jr.bi.  .'!2«.    12  W.-n<I.  267.  •  CnI.-,  yJijO.  u  7  CchIc,  s^im. 

16  W.,,.1.11.  »Cudo,  C;in. 

2aaii<lf.  742.    2Dcnlo,41. 


ACTIONS  HY  SIlRIlIFrS.  :U7 

exccctling  two  tli(jusan<l  dulhus,  wliicli  line,  uiien  collccletl,  shall  bo 
paid  into  the  treasury  of  the  stale' 

^  807.  When  goods  and  chattels  have  been  duly  levied  on  or 
attached  by  an  ollicer,  under  valid  i)rocess  against  the  owner  thereof, 
or  against  one  having  an  interest  therein  subject  to  levy  under  execu- 
tion, or  seizure  under  attachment,  the  ollicer  holding  such  process 
thereby  acquires  a  special  property  in  such  goods  and  chattels  so 
levied  on  or  ;>ttachcd,  and  may  maintain  an  action  against  any  one 
who  interferes  therewith,  or  injures  them,  or  removes  them,  or  converts 
them  to  his  own  use.'^ 

^  808.  If,  however,  the  goods  arc  under  a  jtrevious  levy,  by  a 
dillerent  oflicer,  under  process  issuing  from  a  diflerent  jurisdiction,  a 
subsequent  levy  will  give  the  olliccr  no  lien  thereon,  and  he  cannot 
maintain  any  action  founded  on  such  levy.^  And  if  the  properly  was 
not  subject  to  the  execution,  the  officer  cannot  maintain  trespass  against 
the  owner,  either  for  forcibly  resisting  the  levy  or  for  rescuing  the 
goods.^  But  the  owner  woultl  not,  in  such  case,  be  justified  in  com- 
mitting an  assault  upon  the  ollicer  when  making  such  levy,  though  he 
may  retake  his  goods  peaceably  if  he  can.'' 

^  809.  The  taking  a  bond  or  receij^t  from  a  third  person,  for  the 
goods  levied  on,  or  attached,  conditioned  that  they  shall  be  forthcoming 
when  demanded  by  the  sherifi',  or  to  pay  the  debt,  does  not  divest  the 
officer  of  iiis  special  interest  in  the  property,  but  he  may  repossess 
himself  of  it,  for  the  i)urpose  of  selling  it  or  returning  it  to  the  owner, 
and  he  may  maintain  an  action  for  it  if  taken  by  a  third  party.*'  Ami 
if  such  receiptor  refuse  to  deliver  it  at  the  time,  the  sherifi'  may  maintain 
an  action  against  him  therefor.  And  it  will  not  be  a  defence  that  the 
levy  was  excessive.  Nor  can  the  receiptor  defend  upon  the  ground 
that  the  goods  wei'e  his  own.''  And  where  partnership  property  was 
levied  on  as  against  one  member  of  the  firm,  and  was  receipted  to  the 
officer  by  the  firm,  they  were  not  allowed  to  show  that  the  property, 
after  the  giving  the  receipt  was  applied  to  the  purposes  of  the  firm.^  But 
if  the  property  for  which  the  receipt  was  given,  was  not  the  property 
of  the  defendant  in  the  execution,  and  was  retaken  by  the  owner 
thereof,  or  by  a  superior  lien  thereon,  it  is  a  good  defence  to  an  action 
on  the  receiptor's  undertaking  to  deliver  the  same  to  the  sheriflf.'  And 
where  the  execution  was  for  the  collection  of  a  military  fine,  it  was 
held  to  be  a  good  defence  to  an  action  against  the  receiptor,  that  the 

1  7  Code,  ^441.  3  10  Peters,  400.  e  23  Wend.  GOG. 

2  6  Jolin.  11)5.    1  Cow.  322.  20  Wend.  41.  1  Cow.  Tr.  32.3. 

IG  Wend.  6G2.  ■•  3  Hill,  215.  2  Hall,  425. 

2  Hall,  425.                                Watson,  101.  '  1  Cow.  Tr.  323. 

3  Hill.  215.  5  13  Wend.  .379,  266.  7  Cow.  2'J4.     3  Hill,  215. 
Allen,  149.                                 U.  S.  Cr.  L.  97.  8  23  Wend.  606. 

Sewcll,  429.  Watson,  191.  »  12  Wend.  663. 


318  ACTIONS  l!V  SIlRRlFFf?. 

court  had  no  jurisdiction.'  So  if  the  ollirer  be  a  constable,  and  he 
does  not  demand  the  juopeily  of  the  receiptor  within  the  hfo  ol"  the 
execution,  he  loses  his  lien  and  the  rii^ht  of  possession  ol"  tlie  goods.* 
Hut  removing  a  cause  by  a  certiorari  is  not  a  good  defence  lor  not 
delivering  the  gocxis  at  the  time.'  Where  the  |»roperly  is  taken  out 
of  the  receiptor's  hands  by  any  person  other  than  the  ollioer  who  holds 
the  receipt,  Huch  receiptor  may  maintain  an  action  against  such  person 
therefor,  unless  the  property  was  not  subject  to  the  levy,  and  the  same 
was  taken  by  the  rightful  owner.* 

^  810.  An  ollicer  cannot  maintain  an  action  against  a  stranger  for 
takini:  any  jiroperty  levied  on  by  him,  after  he  has  made  a  return  upon 
the  execution,  by  which,  by  order  of  the  plainlilf  he  has  formally 
released  the  levy.*  IJul  where  such  olhcer  has  been  induced  to  release 
such  levy  by  a  pretended  »laim  to  such  property  by  another,  the  court, 
even  after  a  return  of  nulla  bona  in  such  case,  will  direct  such  return 
to  be  stricken  out,  and  will  sustain  an  action  against  such  party  for  the 
property. 

<S  811.  In  all  actions  for  the  taking  or  the  injuring  of  j)roperty  levied 
on,  the  officer's  indorsement  upon  the  execution,  of  such  levy,  is  suffi- 
cient evidence,  |trima  facie,  of  the  levy  and  possession,  and  to  identify 
the  i)roi)crty,  unless  the  execution  is  inii)eached  as  void.*  Ami  he  may 
alter  the  return  at  any  time  before  fding,  or  the  court  will  permit  him 
to  alter  it  after  it  is  fded,  if  necessary,  so  as  to  specify  the  jiarticular 
pr*^»perty  levied  on.^  Where  the  suit  is  against  a  mere  stranger,  for 
interfering  with  property  levied  on,  who  has  no  title  thereto,  the  officer 
is  not  bounil  to  show  a  judirment.  His  execution,  with  his  indorsement 
thereon  is  sufficient.'  But  if  the  sherill"  has  no  i)rior  possession,  even 
an  officious  stranger  may  defeat  the  action  by  showing  that  the  process 
was  void,  as  having  been  issued  upon  a  judgment  obtained  without 
jurisdiction.'  His  indorsement  of  levy  and  j)osscssion  is  sullicient  in 
the  first  instance,  but  where  the  process  is  impeached  as  void  for  any 
cause  if  he  would  maintain  his  action  on  the  ground  of  prior  possession^ 
he  must  show  such  possession  by  other  evidence.'"  If  it  a])i)ears  clearly 
that  the  suit  by  the  officer  is  for  the  benefit  of  the  plaintilV,  a  valid 
judgment  slumld  be  shown." 

'i  H12.  Where  an  action  is  brought  by  an  olfu-er  against  one  who 
has  converted  or  removed  goods  and  chattels  levied  on,  the  measiU'O 
of  damages  is  the  extent  of  the  officer's  lien  upon  the  goods  under  his 

I  2  DciiUi  CI3.  •  H  Won<l.  115.  8  c  John.  195. 

«  <j  J.iliii  'w>\.  If  l»;'r''    l'»5.                            H  Wciid.  MS.   2  H.iiulf.  17. 

7  lUrb  70.  "  <'"^*'   •'••■'•     Alk-n,  M'J.  »  H  Wrii<l.  115. 

>'»Jf.Jr    ''•''  1')  W.ii.l.  6(3y.                             1!  l».-iii<.,  C.H. 

«  10  W.-iii  ••,  J.,l,ii.  IKf).  'o  1(1  W<ii<l.r>iV.». 

,  3  i-irb      J  '  y  ^^'^-''J-  417.  '«  Cow.  AUill  »  uotcs,  1079. 


ACTIONS   DY   SHKRIFI'S.  ;jl'j 

process.  His  title  is  special  and  lie  can  only  recover  the  amount  of 
tJie  execution  or  executions,  under  which  the  property  was  seized, 
to  the  cxlent  of  the  vahie  of  the  property,  and  not  the  full 
value  of  the  property  taken,  if  it  exceeds  the  amount  of  such  lien.' 

g  813.  Where  an  oflicer  iiolds  an  execution  against  one  and  he 
voluntarily  pays  the  amount  thereof  to  the  plaintill"  out  of  his  (nvn 
money,  he  cannot  recover  the  sum  so  paid  I'rom  the  defendant  without 
first  showing  a  request  by  the  defendant  to  pay  the  same.  And  so  if 
he  is  comjielled  to  i)ay  an  cxccuticm  in  consequence  of  his  neglect  to 
collect  the  same  out  of  the  defendant's  property,  he  has  no  right  of 
action  against  the  defendant.'^ 

^  811.  li'  the  shcrilV  seizes  goods  under  an  execution  as  the  property 
of  the  defendant  and  sells  the  same  and  pays  over  to  the  plaintill'  in 
the  execution  the  proceeds  thereof,  and  is  afterwards  sued,  by  the 
rightful  owner  and  there  is  a  recovery  had  against  him  for  the  value 
of  the  goods  so  sold,  such  olFicer  may  recover  from  the  j)laintiir  the 
amount  actually  paid  to  him  on  the  execution.  But  the  plaintill'  is  not 
bound  to  indemnify  him  against  the  recovery,  nor  the  costs  and 
expenses  of  the  action,  unless  the  levy  was  made  by  his  special 
direction  and  with  a  promise  to  indemnify  the  olhcer  against  the 
conse(iuences  thereof;  or  unless  he  has  given  a  bond  of  indemnity  to 
save  the  sheriff'  harmless. 

§  81.5.  Where  a  prisoner  escapes  without  the  assent  of  the  sherifl', 
he  may  recover  against  him  the  damages  he  has  sustained  in  conse- 
quence thereof,  whether  he  has  taken  a  bond  from  such  prisoner  for 
the  liberties  of  the  jail  or  not ;  or  the  siierifT  may  retake  the  jirisoner 
and  detain  him  until  he  satisfies  him  for  the  damages  he  has  sustained 
by  reason  of  the  escape.^ 

^  816.  In  every  suit  brought  by  a  sherifl'  on  a  bond  taken  by  him 
for  the  liberties  of  the  jail,  the  defendant  may  plead  a  voluntary  return 
of  the  prisoner  to  the  jail  from  which  he  escaped,  or  the  liberties 
tliercof,  or  a  reca})ture  of  such  prisoner  by  the  sherifl'  from  whose 
custody  he  escaped,  before  the  commencement  of  such  suit,  and  may 
give  evidence  thereof  in  bar  of  such  action  ;  and  such  defendants  shall 
be  entitled  to  make  such  or  any  other  defence  to  such  suit,  which 
might  be  made  by  such  sherilV,  to  an  action  against  him  for  such 
escajie.* 

^  817.  But  if  an  action  shall  have  been  brought  against  such  sherifl' 
for  such  escape,  and  due  notice  thereof  shall  have  been  given  to  such 
prisoner  and  his  sureties  who  executed  the  bond  for  the  jail  liberties, 
the  judgment  against  such  sherifl'  shall   be  conclusive  evidence  of  his 

1  8  Wend.  445.  s  1  Kcrn.-xn,  CI.  Ante,  ^417.     <  2  R.  S.  435,  f;48. 

7  Cow.  294,  681.  »  Sewoll,  451.  Id  G79,  ^CS,  4tb  cd. 


320  ACTKW.s    i;v    sriRRIl-FS. 

riuhl  to  recover  nj»ainst  suoli  prisoner  and  his  surelics,  to  whom  such 
notice  was  given,  in  the  action  on  siu'h  l»<»n(l,  ns  to  all  matters  which 
have  or  might  have  l>een  controverteil  in  the  action  against  theshcrilV.' 

;3  SIR.  In  every  such  action  hrought  hy  a  shorilFon  a  bond  executed 
for  the  jail  liberties,  if  it  shall  ap|>car  to  the  rourt  that  judgment  has 
been  rendered  against  such  sherill  for  the  escape  of  the  |)risoner,  and 
that  due  notice  of  the  pendency  of  the  action  against  the  sherilV  has 
been  given  to  such  prisoner  and  his  sureties,  to  enable  them  to  defend 
the  same,  such  court  shall  render  judgment  in  the  suit  ujjon  such  bondi 
at  the  same  term  in  which  the  writ  by  which  such  action  shall  be 
commenced,  shall  1)0  returned  served."  But  to  entitle  any  sherilV  to 
move  for  such  judgment,  he  shall  have  filed  his  de<"laration,  and  shall 
show  to  the  court  that  he  had  given  twenty  day's  notice  of  such 
moticjnf  If  it  shall  appear,  on  the  hearing  of  such  motion,  that  the 
defendants  have  any  meritorious  cause  of  defence,  which  was  not 
controverted  in  the  action  against  the  sheriff,  and  which  by  law  could 
not  have  been  so  controverted,  the  court  shall  suspend  proceedings 
on  such  judgment,  until  a  trial  in  such  action  l)e  bar! ;  but  such 
judgment  shall  remain  as  security  for  the  sherilV.*  If  such  defence 
be  established,  the  court  shall  vacate  such  judgment,  and  render 
judgment  as  in  other  cases.'^ 

^  810.  In  every  action  brought  by  a  sheriir  on  such  bond,  the 
recovery  of  a  judgment  against  hitn  for  the  escaj»e  of  the  juisoner, 
shall  be  evidence  of  the  damages  sustained  by  him  in  the  same 
manner  as  if  such  judgment  had  been  collected  ;  and  such  sheriff 
shall  be  entitled  to  recf>ver  the  costs,  and  his  reasonable  exi>enses  in 
defending  the  suit  against  him  as  a  part  of  his  damages.' 

^  820.  If  any  such  bond  shall  be  forfeited,  the  party  at  whose  suit 
the  prisoner  executing  the  same  shall  have  been  confined,  or  in  case 
of  his  dc.Hth,  the  executors  or  administrators  of  such  party,  shall  be 
entitled  to  an  assignment  thereof,  which  shall  be  made  by  the  sheriff 
taking  the  same,  or  in  case  of  a  vacancy  in  his  oHlce,  by  his  under 
sheriff  or  the  person  acting  in  place  of  such  sheriff,  by  indorsement 
on  such  bond,  executed  in  the  j)resence  of  one  or  more  witnesses.' 

^  821.  The  party  to  whom  such  assignment  shall  have  been  made, 
may  njaintain  an  action  on  such  bond,  as  assignee  of  the  sheriff,  taking 
the  same  in  the  same  cases  in  which  such  action  might  be  maintained 
by  such  sheriff;  and  upon  obtaining  judgment  thereon,  he  shall  recover 

T  2  n.  H.  430,  ^65. 
Id.  (ISO,  ^76,  .nil  u(l 
Ante,  ^770. 


«  B.  8.  4a6,  <il'J. 

•  2  n.  8.  436,  ^62. 

M  •- '•'   •■!. 

I<l.  r,H(»,  (u'l,  nil  cd. 

12  1. 

•  2  K.  s   i;;:,,  <^u:\. 

I!                                     1. 

I.I.  H;(t,  (;,7;;,  .Jtli  cd. 

»2  I'                    •!. 

•  •-:  It  s   i;'.:.,  </,4. 

]'.                  ,  iUicd. 

M,  »>••  ()7  1,  lib  c<l. 

ACTIONS  nV  SIIEIUI-F.S.  321 

(lamacrcs  for  such  breaches  of  the  con(litir)n  as  shrill  have  been  assigned 
by  liini,  as  follows : 

1.  If  the  prisoner  escaping  was  confined  by  virtue  of  an  execution, 
or  by  virtue  of  an  attachment  for  non-payment  of  costs,  the  measure 
of  the  plaintill's  damages  shall  be,  the  amount  directed  to  be  levied  by 
such  execution  or  attachment,  with  interest  thereon  to  the  time  of  such 
recovery  : 

2.  If  such  prisoner  was  confined  by  virtue  of  a  capias  ad  respon- 
dendum, or  upon  a  surrender  in  exoneration  of  his  bail,  made  before  or 
after  judgment  rendered  against  him,  the  plaintill' shall  recover  onlv 
the  actual  damages  sustained  by  him.' 

^  822.  The  acceptance  of  an  assignment  of  any  such  bond,  sliall  be 
a  bar  to  any  action  by  or  on  behalf  of  the  party  receiving  such  assign- 
ment, against  the  sheriflf  or  other  officer  making  the  same,  Tor  any 
escape  by  the  prisoner  executing  such  bond,  amounting  to  a  breach  of 
such  bond.'* 

^  823.  In  every  action  brought  by  the  assignee  of  such  bond,  the 
defendants  shall  be  entitled  to  plead  a  voluntary  return  of  the  ]»risoner 
to  the  liberties  of  the  jail,  before  the  commencement  of  such  action,  in 
bar  thereof,  and  to  make  any  defence  which  they  would  be  entitled  to 
make,  if  such  action  had  been  brought  in  the  name  and  for  the  benefit 
of  the  sheriff  to  whom  such  bond  was  executed.^ 

g  824.  In  case  the  party  at  whose  suit  any  person  shall  have  been 
confined  to  the  liberties  of  the  jail,  shall  refuse  or  neglect  to  take  an 
assignment  of  the  bond  executed  by  such  person,  and  shall  prosecute 
the  sheriff'  for  the  escape  of  such  person,  the  court  in  which  such  action 
shall  be  pending,  shall,  unless  the  escape  shall  have  been  committed  with 
the  assent,  aid  or  assistance  of  such  sheriff,  by  rule,  stay  all  proceedings 
upon  the  judgment  against  such  sheriff,  until  he  shall  have  had  a 
reasonable  time  to  prosecute  the  bond  taken  by  him.  and  to  collect  the 
amount  of  any  judgment  he  may  recover  thereon.^ 

^  S'la.  The  bail  taken  upon  the  arrest  of  a  defendant  under  the 
provisions  of  the  Code,  shall,  unless  they  justify  when  excepted  to,  or 
other  bail  be  given  or  justified,  be  liable  to  the  sheriff  by  action  for 
damages  which  he  may  sustain  by  reason  of  such  omission.'  In  such 
case,  the  liability  of  the  surety  to  the  sheriff  is  the  same  as  to  the 
plaintiff  in  the  action  if  they  had  duly  justified.* 

^  826.'  In  all  cases  where  a  sheriff  has  taken  a  bond  of  indemnitv, 
and  the  same  is  not  void,  he  may  maintain  an  action  thereon  whenever 
the  condition  thereof  has  become  forfeited.     If  the  bond  is  one  of 

'  2  R.  S.  436,  ()56.  3  o  R.  S.  436,  ^58.  s  Code  f\'>03 

Id.  680,  (>76,  4th  cd.  I'l.  681,  v^TS,  4th  cd.  s  7  flow  Pr  R   214 

2  2  R.  S.  436,  ^357.  <  2  R.  S.  436,  f/>59,  60. 
Id.  681,  <377,  4th  cd.  Id.  681,  %1<J,  80,  4th  cd. 

42 


322  ACTIONS  nV  SIIKRIFFS. 

intleinnity  merely,  no  nclion  can  be  mnintaincd  thereon,  until  the  sheriff 
has  become  ilamnified  within  the  CDiidition  of  the  bond.  Thus,  where 
the  bond  is  conditioned  to  save  the  shcriH  harmless  against  a  levy  or 
the  like,  it  is  not  suflirimt  that  tliore  should  bo  a  recovery  against 
him.  It  is  necessary  that  the  shcrilV  should  have  paid  the  judgment, 
or  some  part  thereof,  or  the  rosts  or  cxj'enses  of  the  litigation.  It  is 
not  sufficient  that  he  should  have  incurred  liability.  And  it  has  been 
held  that  a  bond  conditioned  to  indemnify  and  .save  harmless  the  sheriff 
froni  all  costs,  charges,  and  cxjienses  which  he  slioidd  incur  in  defending 
a  suit,  was  one  of  intlemnity  merely,  and  that  no  breach  was  incurred 
until  actual  payment  by  the  party  damnified.'  And  where  the  condi- 
tion of  the  bond  of  a  deputy  to  the  sheriff  was,  that  the  .sherill'  should 
not  sustain  any  damage  or  m«)lestation  by  reason  of  any  act  done,  or 
liability  incurred,  by  or  through  su^h  deputy,  and  a  judgment  was 
recovered  against  the  sheriff  on  account  of  the  acts  or  neglects  of 
such  deputy,  it  was  held  that  such  sheriff  was  not  entitled  to  sustain  an 
action  on  such  bond,  without  payment  of  the  judgment.?  But  if  the 
agreement  of  indemnity  is  to  do  some  act,  or  to  save  the  party  from 
charge  or  liability,  the  condition  is  broken  when  there  is  a  failure  to  do 
the  particular  act,  or  when  such  charge  or  liability  is  incurred  ;  and  it 
is  not  necessary  in  such  case  that  the  party  should  have  actually  paid 
anything.^ 

3  827.  For  a  rescue  on  mesne  process,  the  plaintiff  may  bring  an 
action  atrainsl  the  rescuers  ;  but  where  the  rescue  is  in  execution, 
either  the  sheriff  or  plaintiff  may  bring  an  action,  and  in  such  action 
he  must  state  and  prove  the  judgment,  and  that  the  taking  was  lawful ; 
for  any  person  may  lawfully  resist  an  officer  in  the  execution  of  void 
process,  or  his  attemjtt  to  execute  regular  process  at  an  improper  time 
or  place,  or  in  an  unlawful  manner.^ 

(^  828.  Whenever  the  sheriff  is  damnified  by  the  acts  of  his  under 
sheriff,  dejtuty  or  jailer,  he  may  maintain  an  action  therefor  against 
such  under  sheriff,  deputy  or  jailer.  Or,  if  they  have  given  a  bond  to 
the  sheriff,  conditioned  to  save  him  harmless  against  their  acts  and 
neglect  of  duty,  he  may  maintain  an  action  against  such  under  sheriff, 
deputy  or  jailer,  and  their  sureties  in  the  bond,  whenever  the  con- 
ditions thereof  shall  have  been  broken.'  Thus,  su<'h  under  officers  will 
be  lial'lc  to  the  sheriff  for  all  damages,  costs  and  expt'iises  sustained  by 
hiin  in  consequence  of  any  act  or  neglect  of  duty  on  tlu-ir  |»arl;  as 
neglect  or  refusal  to  execute  process  ;  or  for  its  improper  execution  in 

I  II  IL-irli  -"-'  »  1  Com.  r>50,  <  Wfttson,  75. 

.J  W.ti'l    •'»'•  «  r„w.r/z^.  4  Hill,  -137. 

8       "        l'>Q.  >^  Wrnd.  450.  «  1  Viviul  10. 

•  1  Com.  600.  l'.'    "      428.  AlU-n,  W). 

^  0  Hill,  32-1.  1  Com.  650. 


ACTIONS   BY    SIIKRIFI-S.  :523 

nny  manner  ;  for  neglect  or  refusal  to  seize  the  dcfeiulant  or  liis  goods, 
upon  proper  process,  delivered  to  liim  for  that  purpose  ;  neglect  or 
refusal  to  take  hail  in  a  pro|)er  case,  or  taking  insuflicient  bail ;  or  for 
suffering  an  escape  ;  for  refusing  or  neglecting  to  pay  over  moneys 
collected  on  process,  or  moneys  received  by  iiim  upon  the  redemi»tion 
of  lands  sold;  or  for  the  wrongful  seizing  of  the  goods  of  another; 
or  of  property  e\emj»t  from  levy  or  sale  on  execution  ;  or  for  taking 
illegal  fees.  So  the  deputy  and  his  sureties  are  liable  to  the  sheriff' 
for  moneys  received  i)y  him  on  voidable  process,  and  if  it  be  not 
avoided  by  the  defendant,  the  sheriff'  is  responsible  to  the  plaintiff*  for 
the  amount.'  And  where  the  sherilT  holds  a  senior  execution  and 
the  deputy  a  junior  one,  and  the  latter  sells  goods  under  such 
execution,  but  refuses  to  apply  the  proceeds  to  the  payment  of 
the  senior  execution,  it  is  a  breach  of  his  duty  to  the  sheriff",  and 
he  and  his  surety  will  be  liable  on  his  bond  to  the  sheritr.^  If  the 
sheriff"  be  attaclied  for  the  default  of  the  deputy,  he  may  pay  the 
money  without  defending,  and  recover  against  the  sureties  on  tiie 
deputy's  bond.^  But  the  proper  course  in  such  case  is  to  give  the 
deputy  or  his  bail  notice  of  the  proceedings  and  an  oj)portunity  to 
defend,  and  any  judgment  against  the  sheriff"  in  such  case  will  be 
admissible  in  evidence  to  prove  not  only  the  liability  of  the  deputy, 
but  also  the  amount  of  such  liability.*  In  an  action  on  the  deputy's 
bond  for  not  paying  over  money,  it  is  no  defence  that  the  deputy  kept 
the  money  by  the  sheriff''s  leave,  unless  there  was  a  valid  discharge 
under  seal.*  Nor  will  it  be  a  defence  in  such  case  that  before  the 
alleged  default  the  deputy  became  insolvent  and  that  the  surety 
requested  the  sheriff'  to  remove  him  from  office,  but  that  he  neglected 
to  do  so.*  But  if  in  any  case,  the  deputy  acted  under  the  sheriff''s 
special  direction  and  authority,  neither  he  nor  his  surety  are  liable,  as 
all  discretion  of  the  deputy  was  thereby  excluded  in  the  performance  of 
the  particular  act.  To  exonerate  the  deputy,  however,  the  instruc- 
tions of  the  sheriff*  must  be  clear  and  explicit,  and  a  communication  of 
mere  information  and  advice  will  not  have  that  effect.  To  excuse 
the  deputy,  the  directions  of  the  sheriff"  must  be  such  as  to  deprive  him 
of  all  discretion  in  the  matter.''  The  bond  given  by  a  deputy  to  the 
sheriff'  does  not  usually  cover  suits  wrongfully  commenced,  against 
the  sheriff)  unless  it  expressly  so  provide  ;  but  some  act  or  omission  of 
the  deputy  must  be  shown,  of  such  a  character  that  the  sheriff'  would 
be  legally  bound  to  answer  for  it  in  damages.^  The  bail  of  a  dejiuty 
are  answerable  only  for  a  breach  of  his  official  duty,  and  not  for  want 

»  1  Wend.  16.  *  6  Barb.  467.  «  9  Cow.  C93.     11  Wend,  28. 

8  5  Barb.  385.  Cow.  &  Hiirs  notes,  822.      '  15  Weiul.  274. 

3  9  Cow.  G93.  5  1  Siuidf.  626.  »  2  Uill,  (^. 


324  ACTIONS  AtJAINST  SHKIUl'FS. 

ol  niiy  courtesy  lo  his  principal,  nor  for  any  act  merely  annoyincf  or 
trouMesonie.'  Altlu»uyli  where  the  sherill"  is  sueil  lor  the  act  ol"  his 
deputy,  he  cannot  show  his  return  t«»  he  false,  yet  he  may  do  so 
in  an  action  hrou^ht  l»y  himsrlf against  su<h  deputy  or  his  sureties  for 
making  the  return."  Whether  the  .sherill"  will  bo  entitled  to  recover 
against  the  deputy  u|>on  his  hond  before  he  has  actually  paid  the 
liability  incurred  throui,'h  the  act  or  default  of  such  deputy,  will 
dej>end  upon  the  conditions  of  such  bond.  If  the  bond  be  merely 
conditioned  to  save  the  sheriff  harmless  from  all  costs  and  damages 
he  may  be  subject  to  by  reason  of  the  acts  or  defaults  of  the  de|>uty, 
it  will  be  necessary,  to  entitle  him  to  recover,  that  there  has  not  only 
been  a  recovery  against  him  for  some  act  or  default  of  the  deputy, 
but  that  he  has  paid  money  in  consccjuence  thereof.  And  it  has  been 
held  that  where  the  deputy's  b(»nd  was  conditioned  that  the  sheriff 
should  not  sustain  damage  or  molestation  by  reason  of  the  acts  or 
omissions  of  the  deputy,  or  by  reason  of  any  liability  incurred  through 
such  acts  or  omissions,  that  there  was  no  breach  of  the  bond  until 
actual  damage  was  sustained,  and  that  a  recovery  against  the  sheriff 
was  not  a  forfeiture  of  the  bond.  But  if  the  bond  is  conditioned  to 
save  the  sheriff  harmless  from  a  charge  or  liability,  it  is  forfeited 
when  such  charge  or  liability  is  incurred.^ 

CHAPTER   XLII. 

ACTIONS  AGAINST  SUIiKIFFS. 

^  829.  The  cases  in  which  sheriffs  are  criminally  liable  lor  any 
neglect  or  misconduct  in  the  discharge  of  the  duties  of  their  olHce, 
have  been  pointed  gut.  liut  in  addition  to  the  special  juovisions  of 
the  statutes  already  given,  it  is  further  jjrovideil  that  where  any  duty 
is  or  shall  be  enjoined  by  law,  uj)on  any  public  ollicer,  or  upon  any 
person  holding  a  public  trust  or  employment,  every  wilful  neglect  to 
perform  such  duty,  where  no  special  provision  shall  have  been  made 
for  the  punishment  of  such  delinquency,  shall  be  a  misdemeanor,  and 
be  punished  by  im|)risonment  in  a  county  jail,  not  exceeding  one  year, 
or  by  a  hue  not  exceeding  two  hundred  and  fifty  dollars,  or  by  both 
HUch  fine  and  imjuisonment.*  So  any  oj)j)ression  of  an  ollicer  in  the 
exec.,Htion  of  process,  is  indictable.*  And  though  an  officer  have  a 
legal  warrant  fur  the  arrest  of  one,  yet  if  he  combine  with  the  com- 
plaint to  extort  money  from  the  |)risoner,  by  operating  upon  the  fears 
of  the  accused,  lie  will  lose  the  |irotection  of  his  warrant,  and  become 
liable  to  indictment  as  well  as  lo  an  action  for   lalse   imj^risonment.* 

<  b  Karb.  886.  ♦  :  U.  S  10.  s  All.n,  03. 

»AtiU-,<>46.  Q  id.  b-  .    Uhud.     •  3  Wctid.  360. 

»  1  Com.  660.       '^ 


ACTIONS  AGAINST  SHHIUFFS.  325 

ll  is  extortion  to  deiiKUul  fees  befon;  they  are  due  ;  as  where  an  oH'H'er 
refuses  to  execute  process  unlir  his  fees  are  paid.'  liul  t<i  render  the 
sherilT  criminally  liable,  the  act  complained  of  must  have  been  done  by 
him  or  by  his  express  command  ;  for  though  he  is  liable  in  a  civil  action 
for  every  neglect  or  misconduct  in  ollice  of  any  of  his  subordinates, 
in  the  same  cases,  and  to  the  same  extent  as  if  the  act  was  done,  or 
omitted  to  be  done,  by  himself,  yet  he  is  not  liable  to  indictment  for 
the  neglect  or  misconduct  of  his  deputies.  Thus,  though  there  may  be  a 
recovery  against  him  for  the  extortion  of  his  deputy  ;  or  where  the 
deputy  sullers  an  esca|)e,  or  commits  any  other  misfeasance  in  his 
office,  yet  he  cannot  be  held  criminally  to  answer  in  any  such  case.' 
Where  the  sherilF  shall  have  been  fined  or  im]n-isoned  under  the  stat- 
utory proceeding  to  jninish  for  contempts,  for  the  act  or  neglect  of  duty 
for  which  he  is  indicted,  the  court  before  which  a  conviction  shall  be 
had  on  such  indictment,  shall  take  into  consideration  the  punishment 
before  inflicted,  in  fixing  its  sentence.' 

§  830.  The  sheritV  is  civilly  liable  to  the  party  aggrieved  for  any 
default,  misconduct,  or  delinquency  in  his  otTice,  whether  the  act  or 
default  was  committed  or  suflered  by  the  sheriff  himself,  or  by  any 
deputy  or  other  subordinate  ollicer  of  such  sheriff.  But  if  the  sheriff 
shall  have  been  attached  as  for  a  contempt  for  the  act  complained  of, 
and  a  fine  shall  have  been  imposed  sufficient  to  indemnify  such  party, 
and  to  satisfy  his  costs  and  expenses,  the  payment  and  acceptance  of 
such  fine  shall  be  an  absolute  bar  to  any  action  by  such  aggrieved 
party  to  recover  damages  for  such  injury  or  loss.'' 

g  831.  Every  sheriff  or  other  officer  to  whom  any  process  shall  be 
delivered,  shall  execute  the  same  according  to  the  command  thereof, 
and  shall  make  due  return  of  his  proceedings  thereon,  which  return 
shall  be  signed  by  him.  For  any  violation  of  this  provision,  such 
sheriff  or  other  oflicer  shall  be  liable  to  an  action  at  the  suit  of  any 
party  aggrieved,  for  the  damages  sustained  by  him,  in  addition  to  any 
other  fine,  punishment  or  proceeding  which  may  be  authorized  by 
law.* 

^  832.  The  sheriff  will  be  liable  to  an  action  at  the  suit  of  the  plain- 
tiff where  he  refuses  or  negle<:ts  to  take  the  defendant  or  his  goods  on 
a  writ  directed  and  delivered  to  him  for  that  purpose,  where  he  has 
an  opportunity  to  do  so.  In  all  such  cases  it  is  the  officer's  duty  to 
make  the  necessary  inquiries,  to  ascertain  whether  the  defendant  is 
within  his  county  or  not,  and  to  arrest  him  before  the  return  day  of  the 
process.     Or,  if  the  process  be  an  execution  or  attachment  against 

iSewcll    461  3  2  R.  S.  339,  (>28.  s  2  R.  S.  440,(377. 

2  7  John  35  M-  '"'-.  ^-6,  4th  cd.  Id.  684,  </j7,  4th  ed. 

Watson,  37.  4  2  R.  S.  538,  (>21. 

Allen,  81.  I<i-  771,  <j21,  4th  cd. 


326  ACTIONS  AC.AINST  SHICIUFFS. 

proiHjrly,  he  is  hoiiiui  to  make  llic  like  iiKjuiries,  to  learn  whclljcr  ihe 
defendnnt  has  projMjrty  subject  lo  such  process.  JSiu'h  iiupiiries  ought 
to  be  made  at  the  residence  of  the  deliMKhint,  or  in  the  neighborhood  ; 
and  the  ollicer  is  not  bound  to  make  in(}uiries  elsewhere,  unless  lie  has 
reason  to  believe  that  the  defendant  may  be  found  elsewhere  in  the 
county,  or  that  he  has  proj>erty  in  another  place  within  the  county. 
The  plaintiir  in  the  process  is  under  no  obligation  to  give  the  ollicer 
any  information,  yet  if  he  improperly  withholds  any  necessary  informa- 
tion from  the  ollicer  when  in(|uiry  is  made,  that  fad  may  be  given  in 
eviticnce  in  mitigation  of  damages  ;  and  if  the  jdainlill'  intentionally 
gives  wrong  information  for  the  iturj)Ose  of  leading  the  ollicer  astray, 
it  will  be  a  good  defence  to  any  action  by  such  plaintifl'for  not  making 
the  arrest  or  sciy.ing  the  defendant's  gooils.' 

;3  833.  Where  the  action  is  for  not  serving  mesne  process,  the  plain- 
tilT  must  prove  the  cause  of  action  ;  for  which  j)uri)Ose  any  evidence 
is  competent  which  would  be  admissable  in  a  suit  against  the  debtor. 
Hence  the  acknowledgment  of  the  debtor  that  the  debt  is  justly  due, 
is  admissible  against  the  sherifV.  If  it  is  final  process  against  one,  the 
production  of  a  certified  copy  of  the  judgment  record  will  be  neces- 
sary, lie  must  also  prove  the  issuing  of  jirocess  whether  it  be  mesne 
or  final,  and  the  delivery  of  it  to  the  sherilF.  If  it  be  returned,  the  proof  is 
by  a  certified  copy  ;  if  not,  its  existence  must  be  established  by  secon- 
dary evidence  ;  and  if  it  is  traced  to  the  otlicer's  hands,  he  should  be 
served  with  notice  to  produce  it.  And  here,  and  iii  all  other  cases  where 
the  issuing  of  i)rocess  is  alleged,  the  allegation  must  be  precisely  proved 
or  the  variance  will  be  fatal.  Some  evidence  must  be  given  of  the 
oflicer's  ability  to  execute  the  process  ;  such  as  that  he  knew  or  ought 
to  have  known,  that  the  person  against  whom  he  held  the  process  was 
within  his  county  ;  or  that  goods  which  he  might  and  ought  to  have 
attached  were  in  the  debtor's  possession.  The  averment  of  neglect  of 
otricial  duty,  though  negative,  it  seems,  ought  to  be  supported  by  some 
proof  on  the  i)art  of  the  plaintilf,  since  a  breach  of  duty  is  not  j)re- 
sumed  ;  but  from  the  nature  of  the  case  very  slight  evidence  will  be 
sullicient  to  devolve  on  the  defendant  the  burthen  of  jiroving  that  his 
dulv  Ikis  been  performed.  The  damages  w  ill  at  least  be  nominal, 
whenever  any  breach  of  iluty  is  shown  ;  and  may  be  increased 
according  t<j  the  evidence.' 

^  831.  In'  defence  of  actions  of  this  descrijitioii,  where  the  suit  is 
for  neglecting  to  seize  goods,  the  sherill*  may  show  that  the  property 
dill  not  belong  to  the  debtor,  or  was  exempt  from  levy  and  sale  ;  or 
that  there  were   reasonable  doubts  as  to  the  ownership,  and  that  the 

• 
I  ScwiH,  4?,7.  «  2  On-Liil.  Ev.  (»r>81. 

10  Wind.  8(37.  »  2  Orccnl.  Ev.  ^&b6. 


ACTIONS  AGAINST  SHERIFFS.  ri27 

plainlifl"  refused  to  indemnify  him  for  takini:^  them  ;  or  thnt  on  inquest 
(tf  title,  the  same  was  f<jund  out  of  the  judgment  debtor  ;  that  the 
same  was  mortgaged,  and  that  the  jurlgment  debtor  had  not  the  right 
of  possession  ;  that  the  mortLiagee  liad  taken  possession  ;  or  thai  by  the 
condition  of  the  mortgage  the  title  of  the  mortgagee  had  become 
absolute,  whether  he  had  taken  possession  or  not ;  and  that  the  property 
had  been  let  to  hire,  and  that  the  period  for  which  it  was  so  hired  had 
not  expired  at  tlie  return  of  the  execution.  So  the  oflicer  may  show 
that  the  plaintilV's  judgment  was  founded  in  fraud  ;  first  siiowing  that 
he  has  leg;il  jirocess  in  his  hands,  of  another  judgment  creditor  ;  or 
that  the  judgment  is  void ;  and  that  tlie  execution  had  become  flor- 
mant  in  his  hands  by  reason  of  instructions  by  the  plaintilV  to  delay.' 
He  may  also  show  that  there  were  other  liens  on  the  proi)erty  ;  so  he 
may  show  that  after  the  levy  and  sale,  he  had  been  sued  for  the  prop- 
erty and  a  recovery  had  against  iiim  for  the  value  thereof;  that  the 
goods  were  rescued  from  him,^  and  that  after  the  levy,  they  were  lost 
or  destroyed,  without  negligence  or  default  on  his  i)art,  but  this  will 
not  be  a  good  defence  unless  the  sheriff  took  the  property  into  his  pos- 
session. Nothing  but  the  act  of  God,  or  of  the  public  enemies  will 
excuse  him,  where  he  leaves  the  property  with  the  defendant,  or  with 
a  receiptor.' 

^  835.  By  the  provisions  of  the  Code,  it  is  declared  that  if  the 
bail,  on  arrest,  do  not  justify,  when  excepted  to,  or  other  bail  be  not 
given,  who  shall  justify,  the  sheriff  shall  be  liable  as  bail,  and  an  action 
may  be  maintained  against  him  under  the  same  circumstances  as 
against  the  bail,  on  the  default  of  the  principal  to  comply  with  the 
conditions  of  the  undertaking.^  But  it  will  be  a  good  defence  that 
the  defendant  has  surrendered  himself  before  action,  or  has  been 
retaken  by  the  sherifl';  or  that  the  sheriff  has  given  new  bail,  who 
have  justified.  And  so  if  the  process  was  absolutely  void  ;  or  the 
defendant  was  exempt  from  arrest.  And,  as  has  been  seen,  if  on 
the  return  of  executions  duly  issued  upon  any  judgment  obtained  on 
any  bond  taken  bv  the  sheriff  on  the  arrest  of  one  under  an  attach- 
ment as  for  a  conteinpt,  it  shall  appear  that  the  sureties  taken  therein 
were  at  the  time  of  taking  them,  insufficient  and  that  the  officer 
receiving  them  had  reasonable  grounds  to  doubt  their  sufficiency,  he 
shall  be  liable  in  an  action  on  the  case,  to  the  party  aggrieved,  who 
may  have  prosecuted  such  suit,  for  the  amount  of  the  judgment  recov- 
ered by  him,  and  for  his  costs  and  expenses  in  such  suit ;  or  if  such 
suit  was  brought  by  the  attorney  general,  or  a  district  attorney,  an 

1  11  John.  110.  2  12  John.  407.  3  5  Dcnio,  586. 

2  Wcud.  419.  10  Woiid.  350.  *  Code,  201. 

15  John.  428. 
6  HiU,  377. 


328  ACTION'S  ac;ainst  siii:riii-s. 

anion  on  the  case  may  in  like  manner  l)e  luoui^lil  Ity  tlicm,  iii  the 
name  t>l'  the  )>eoj»Ie  of  this  state,  lor  the  amoiml  of  the  jiul^^nient  so 
recovered.'  When  sued  in  such  case,  the  sheriff  may  show  that  such 
sureties  were  at  the  time  apparently  res|>unsihle  and  in  ;;ood  credit : 
or  that  he  exercised  a  roas()nal)lc  and  s()un<l  discretion  in  deciding 
upon  their  sufriciencv.  of  which  the  jury  are  to  judge.  Hut  their  own 
statement  to  the  sherilV  as  to  their  responsihihty  is  not  sufl'icicnt. 
though  they  are  competent  witnesses  for  him  on  the  trial.  On  the 
other  hand  it  may  be  shown  that  the  sherilV  had  notice  of  their  insuf- 
ficiency, or  did  not  act  with  <hie  caution,  under  the  circumstances; 
or  that  their  jiecuniary  credit  was   low  in   their  own  neighborhood." 

2?  830.  When  the  sheritr  seizes  goods  under  process,  he  is  bound  to 
exercise  ordinary  diligence  in  takini^  care  of  them,  and  if  he  keeps 
them  in  an  unsafe  place  or  exposes  them  to  destruction,  and  they  are 
lost  or  destroyed,  he  will  be  liable  for  the  damages  sustained  thereby. 
And  so  if  he  negligently  injures  the  projierty  levied  on.  If  he  leaves 
the  property  in  the  hands  of  the  debtor,  though  he  take  a  receipt 
therefor  from  another  person,  nothing  will  excuse  him  but  the  act  of 
God  or  the  public  enemies,  not  even  the  destruction  of  the  property 
by  fire.  If,  however,  he  takes  the  property  into  his  possession,  he  will 
be  excused,  if  he  shall  have  bestowed  ujion  it  such  care  as  a  prudent 
man  would  take  of  his  own  property,  thoujfh  it  be  lost  or  stolen  or 
destroyed  by  fire.  So  too  the  plaintifT  in  an  execution  or  attachment 
will  have  no  right  of  action  against  the  sherilV  where  the  property  is 
left  with  the  defendant  by  his  direction,  or  with  a  receiptor  of  his 
selection.  Where  property  levied  on  is  lost  or  destroyed,  the  sheriff's 
return  of  that  fact  to  the  process  will  not  be  evidence  for  him  in  any 
action  against  him  therefor.  Such  fact  nuist  be  proved  in  the 
ordinary  way.' 

2  H'.il.  The  sherifT  is  liable  to  the  plaintiff  in  an  action  for  moneys 
collected  bv  him  on  erxecution,  which  lie  refuses  or  neglects  to  pay 
over.*  So  an  action  may  be  maintained  against  him  for  money 
collected  upon  an  execution  directed  to  the  slieritf  of  another  county. 
He  might  have  refused  to  execute  it,  but  having  received  the  money 
upon  it,  he  is  bound  to  pay  it  over  to  the  plaintiff.^  So  too,  ho  is 
resjKjnsible  for  money  received  by  his  dei)Uty  on  erroneous  process, 
and  in  an  action  against  him  he  cannot  avail  himself  of  the  defects  in 
the  execution,  f)r  that  it  was  improjierly  issue<l.*  An  action  for  the 
non-payment  of  money  in  such  case,  may  be  brought  against  the 
sheriff  without  demand   first  made,  or  notice   to  him   to  return  the 

'  2  R.  8.  639  ^32.  '  Scwill,  437.  »  Ifi  Wend.  676. 

M,  772,  <>32,  4th  od.  r,  (j.,w.  406.  •  1  Wond.  10. 

I  2  GrtMMil.  Kv.  (/ttifj.  21  W.-nd.  204.                            8  Scld.  1«6. 

*  \nii:,<)i'VJ.  7  11.11    r.'H 


ACTIONS  AGAINST  SIIRRIFFS.  329 

execution,  immediately  after  the  return  day  tln-nMif,  hut  not  before, 
thouf'h  the  money  may  have  been  received  by  the  sheiill"  b.  lore  the 
return  day.  If  a  deputy  receives  an  execution,  and  is  afterwards 
api)ointed  sherill",  and  then  reahzes  the  money  on  the  execution,  it  is 
received  by  him  as  deputy  and  not  as  sherifl",  and  the  former  sherifl* 
will  be  liable  to  an  action  therefor,  and  not  the  bail  of  su<-li  new  sherifl'.' 

g  838.  Where  the  action  is  for  not  paying  over  money  collected, 
the  evidence  on  the  part  of  the  plaintift'  consists  of  i)roof  of  the 
receipt  of  the  money  by  the  ollicer,  under  the  j)rocess,  and  where 
a  demand  is  recjuisite,  that  it  has  been  demanded.  The  most  satis- 
factory proof  of  the  receipt  of  the  money  is  the  officer's  return  on  the 
execution;  which  is  shown  by  a  certified  copy,  if  it  has  been  returned, 
and  by  secondary  evidence  if  it  has  not.  The  return  is  conclusive 
evidence  against  the  sheriff  that  he  has  received  the  money  ;  but  it 
does  not  prove,  nor  will  it  be  presumed,  that  tiie  money  has  been  paid 
over  to  the  creditor.'* 

^  839.  In  the  defence  of  an  action  f<»r  this  cause,  the  sherilV  may 
show  as  in  all  other  cases,  when  sued  by  the  plaintill",  that  the  process 
was  absolutely  void,  though  it  will  not  be  sufficient  that  it  was  irregu- 
lar, and  voidable  merely.  He  may  also  show  that  the  money  sought 
to  be  recovered  was  made  out  of  the  goods  of  a  stranger,  and  not 
those  of  the  defendant,  to  whom  the  officer  is  liable.^  And  the  fact 
that  the  plaintifl'  had  given  the  sherifl'  a  bond  of  indemnity,  against 
the  levy  and  sale  thereof,  and  had  sued  thereon  will  not  vary  his 
rights.*  So,  it  will  be  a  good  defence  that  the  defendant  had  at  the 
time  become  bankrupt,  and  that  the  goods  belonged  to  his  assignees ; 
and  this  will  be  so  though  he  has  made  return  that  he  has  collected 
the  money  out  of  the  goods  of  the  debtor.  He  may  also  show  that 
the  plaintifl'  had  directed  him  to  apply  the  money  to  another  purpose 
which  he  had  accordingly  done.^ 

^  840.  Where  process  is  returnable  by  a  day  certain,  as  an  execu- 
tion, or  a  judge's  order  for  the  arrest  of  a  defendant  or  the  like,  it  is 
the  officer's  duty  to  make  return  thereof  by  such  return  day,  or  an 
action  therefor  may  at  once  be  brought  against  him ;  and  it  will  be  no 
defence  that  he  has  not  been  ruled  to  return  the  same.®  If  there  be 
no  return  day  named  in  the  process,  or  paper,  nor  any  time  prescribed 
by  statute,  an  action  may  be  maintained  against  the  sherilF,  if  he  shall 
neglect  to  make  such  return,  after  having  been  duly  notified  to  do  so. 
according  to  the  rules  and  practice  of  the  court.  -  Where  the  action 
is  for  neglect  to  return  process  alone,  and  not  also  for  neglect  to  pav 

1  19  Wend.  482.  3  0  Jolin.  9G.  s  2  Grccnl.  Ev.  <)G88. 

3  2  Groenl.  Ev.  <)587.  7  WcikI.  259.  «  15  John.  456 

3  Seld.  453.  6  Wend.  207.  21     "      264.                             3  Hill,  552. 

6  Cow.  465.  *  21  Wend.  264. 

43 


3:>0  ACTIONS  ACAINST  SHi:ilIFI\>=!. 

over  money  collected  on  execution  or  the  like,  the  plaintilT  will  be 
entitled  to  recover  nominal  damages,  cm  proof  of  the  neglect  com- 
plained of,  and  niso  his  nrtual  damages  to  the  extent  of  the  loss  or 
injury  sustaine<l  hy  him  l)y  reason  of  such  neglect  or  refusal.  It  would 
seem  too,  that  a  sherill  was  liable  to  nominal  damacos  for  not  return- 
ing an  execution  in  the  hands  of  his  deputy,  after  due  notice,  where  by 
the  interference  of  the  plaintifl' the  sluMiff  may  be  released  from  liabil- 
ity as  to  the  manner  of  its  execution,  or  for  any  money  the  deputy 
may  have  collected  thereunder.' 

j5  S11.  In*  an  action  for  an  escape,  the  plaintilF  must  prove  his 
character  of  creditor;  the  delivery  of  the  jMocesd  to  the  officer  ;  the 
arrest ;  the  escape,  and  the  damages  or  debt.  If  the  escape  was  after 
judgment,  his  character  of  creditor  is  proved  by  a  copy  of  the  record  ; 
and  where  the  action  is  debt,  the  plaintilf  is  entitled  to  recover  the 
amount  of  his  judgment  without  deduction  or  regard  to  the  circum- 
stances of  the  debtor.  But  if  it  be  trespass  on  the  case,  as  it  must  be 
where  it  is  for  an  escape  on  mesne  process,  and  it  may  be  where  the 
arrest  was  upon  execution,  the  itlaintiff  must  prove  his  debt  in  the 
manner  stated,  in  actions  for  not  serving  process.  The  process  must 
be  proved  precisely  as  alleged,  a  material  variance  being  fatal.  The 
delivery  of  the  process  to  the  oH'icer  will  be  proved  by  his  return,  if  it 
has  been  returned,  or  by  any  other  competent  evidence  if  it  has  not. 
The  return  of  cepi  corpus  will  be  conclusive  evidence  of  the  arrest ; 
and  if  there  has  been  no  return,  the  fact  of  arrest  may  be  proved  by 
parol.  The  escai>e  is  proved  by  any  evidence  that  the  debtor  has  been 
seen  at  large  after  the  arrest,  for  any  time,  however  short,  and  even 
before  the  return  of  the  execution.  But  f)therwise,  if  it  be  on  mesne 
process.  The  various  grounds  of  defence  to  an  action  of  escape  have 
already  been  pointed  out  in  the  chapter  roncerning  escapes.' 

5  812.  In  an  action  for  a  false  return  to  mesne  process,  the  plaintiff 
must  prove  the  cause  of  action,  the  issuing  of  the  jn'occss,  and  the 
delivery  of  it  to  the  officer,  in  the  same  manner  as  in  actions  lor  not 
serving  mesne  process.  If  the  alleged  false  return  be  to  an  execution, 
the  plaintiff  must  show  a  valid  judgment  ;*  and  the  issuing  of  the 
execution.  The  return  must  be'shown,  in  either  case,  and  some  evi- 
dence must  be  adduced  of  its  falsity,  where  it  is  not  admitted.  Slight 
evidence  to  this  effect  will  be  sufficient  to  jnit  the  sheriff  upon 
proof  of  the  truth  of  the  return,  as  in  case  of  an  execution,  by  showing 
lliat  the  debtor  was  in  the  possession  of  good^j  and  chattels,  without 
proving  the  property  to  be  in  him.  If  the  process  was  against  .several, 
and  the  allegation  is  that  they  had  goods  which  might  have  been  seized, 

« 1  n<-ii{o.  648.  » Aiit.-,  W>n,  &.C. 

*  2  Orccul.  Er.  680.  ♦  3  Ucuio,  46. 


ACTIONS  AGAINST  SIIKUIFFS.  331 

the  alk'^'ation,  heing  severable,  will  be  siii)iHjrle(l  by  inoof  ilml  any  one 
of  them  had  such  goods.' 

(^  HI.'}.   In   (lefenco  of  such  action,   the   slierilf  may  .show  that  the 
plaintilf  assented  to  the  return  after  bein;,'  informed  of  all  the  circum- 
stances ;  or  where  j)art  only  of  the  money  was  levied,  that  the  plaintiff 
accepted   it    with    intent    to   waive   all    further    remedy    against    the 
sheriff,  and  with  full  knowledge  of  the  facts  ;  or  that  the  plaintilf  has 
lost  his  i)riority,  by   ordering  the  levy  of  his  execution  to  be  stayed, 
another  writ  having  been  delivered  to  the  sheriff;  or  that  the  first  levy  tor 
not  returning  which  the  action  is  brought,  was  fraudulently  made,  and 
so  void;  or  that  the  plaintiff's  judgment ,was  entered  u\>  by  fraud  and 
collusion  with  the  debtor,  the  sheriff  first  proving  that  he  represents 
another  creditor  of  the  same  debtor,  by  showing  a  legal   precej)t  in 
his  hands.     He  may  also  show  that  the  goods  were  absorbed   by  a 
prior  execution   in   his   hands ;    and   in   such  case    the  plaintiff  may 
rebut  this  evidence  by  proving  that  such  prior  execution  is  fraudulent, 
and  that  the  sheriff  liad   previous  notice  thereof,   and   was  recjuired 
by  the  plaintiff  not  to  pay  over  the   proceeds  to   the  prior  creditor. 
He  may  also  prove  that  the  debtor  had  previously  become  bankrupt. 
And  if  the  assignees  are  the  real  defendants,  the  plaintiff  may  give 
in  evidence  the  petitioning  creditor's  declarations   in  disparagement 
of  his  claim,   though   he  has   not  been  called   as  a  witness   by  the 
defendant. '^     Where  the  defence  is  an  alleged   assignment  and  sale 
by  the  debtor,  the   plaintiff  may  i)rove  the  sale  fraudulent.     So  if  the 
sheriff  defends  his  return  on  the  ground  that  the  debtor  w'as  an  ambas- 
sador's  domestic    servant,  the   plaintiff  in  reply  may  show  that  his 
appointment  was  colorable  and  illegal.     And  where   he  has  taken  an 
inquisition  of  a  jury,  and  the  property  has  been  found  out  of  the  judg- 
ment debtor,  it  is  conclusive  in  his  favor  in  an  action  for  a  false  return 
of  nulla  bona,  where  he  acts  in  good  faith  ;^  but  it  is  no  justification, 
and  is  only  admissible  in  mitigation  of  damages  in  an  action  of  tres- 
pass, by  the  true  owner  of  the  goods,  for  illegally  taking  them.* 

5  84  i.  As  has  already  been  seen,  the  sheriff  may  refuse  to  execute 
void  process  ;  or  he  may  stop  its  execution  on  discovering  that  it  is 
void,  and  the  fact  that  it  is  so  void  will  be  a  good  defence  to  any 
action  for  such  neglect  or  refusal.*  But  it  is  otherwise  with  process 
which   is  merely  voidable,  and  not  absolutely  void.'     In  the  former 

1  "^  Orooni  Ev  v\592.  »  Ante,  <)<)1S^,  &c.  «  1  Cow.  GOO.     4  Cow,  158. 

a  2  Grccni.  Ev.  v,503.  IG  Wend.  662.  8    "      192.  3  Scld.  195. 

3  8  John.  185.  7  Hill,  i^b.  2  Barb.  309. 

10  John    98  1  Cow.  Tr.  520,  3  Barb.  17.    12  Wond.  97. 

15  John.  147.  3  Scld.  195.  2  Hill,  .304.     S  Hill,  109. 

7  Wend    230.  Watson,  53.  3  Sandf.Cli  .  110. 

8  Cow.  65.  SewcU,  99,  100,  3  Barb.  Cli.  Ibi. 

4  2  Greenl,  Ev.  §594.  8  Paige.  409. 


ti32  ACTIONS  At;  A  INST  SI  li:  RIFFS. 

case,  the  process  is  no  |>r<)ieriioii  i..  the  ollicer  who  executes  it,  but  in 
the  latter  it  is  a  comj'letc  justification  to  the  ollii-cr,  until  it  is  set  aside 
In  the  party.'  One  strong  reason  why  the  sherifl*  shall  not  take 
advautai^e  of  the  error  in  issuinu;  the  jirocess  is,  that  for  aui^lit  that 
appears  the  party  dcx^s  not  wish  lo  avail  himself  of  it.*  Thus  il  has 
been  held,  that  though  an  execution  issued  before  the  expiration  of  the 
thirty  days  after  the  dockettini^  <>f  the  judgment,  as  i)rescribed  by 
statute,  that  fact  could  not  be  taken  advantage  of  by  the  sherilV,  in  an 
action  for  a  false  return ;'  nor  the  fact  that  the  whole  amount  directed 
to  be  collected  in  the  execution  was  not  due.*  A  constable  or  his 
surety  cannot  avail  himself  of  an  omission  by  the  justice  to  comply 
with  the  requirements  of  the  statute  in  relation  lo  the  mode  of  enter- 
ing judgment  by  confession  when  sued  for  not  executing  process.* 
Process  returnable  on  Sunday  is  voidable  and  not  void,*  and  that  fact 
will  not  excuse  neglect  to  execute  it. 

^  845.  The  sheriff  is  liable  in  an  action  at  the  suit  of  the  defendant 
in  the  process,  for  arresting  him  or  seizing  his  goods  under  void  pro- 
cess, but  not  if  the  process  is  voidable,  and  may  be  amended.  So  if 
he  arrest  one,  or  seize  his  goods,  out  of  his  jurisdiction,  unless  after 
escape  or  fraudulent  removal  of  the  goods  after  a  levy ;  or  where  the 
arrest  and  seizing  the  goods  is  made  at  an  im])roper  lime  or  place,  as 
on  Sunday,  or  in  the  dwelling  of  the  defendant,  where  the  officer  has 
entered  against  the  wishes  of  the  occupant.  So  he  will  be  liable  to 
the  defendant,  if,  after  arrest,  he  refuses  to  take  bail  in  a  proper  case, 
where  there  is  a  tender  to  him  of  sufficient  sureties.  It  will  be  no 
answer  that  the  defendant  did  not  tender  a  bond  ;  the  sheriff  is  lo 
prei)are  it.^  Where  there  is  any  abuse  in  the  execution  of  process, 
trespass  will  lie  against  the  sheriff.*  And  so  he  is  liable  for  an 
excessive  levy  ;•  and  for  the  value  of  the  goods  he  may  sell  over 
sufficient  to  pay  the  debt  and  costs  and  fees.'"  He  will  be  liable  for 
any  negligence  by  which  his  property  is  lost  or  destroyed  or  squan- 
dered." But  he  will  not  be  liable  in  such  case  to  a  mortgagee,  whose 
mortgage  is  subsecjuent  to  the  judgment,  and  by  means  of  such  loss,  the 
execution  had  to  be  satisfied  out  of  the  defendant's  lands."  He  is 
liable  lo  the  defendant  for  any  surplus  over  any  execution  in  his  haiuls, 
unless  there  are  other  judgments  against  the  defendant  and  the 
officer  has  \ya\d  the  money  into  court."     If  a  wrunglul  levy  is  made 

1  8  Scld.  1%.  T  Scwell,  456.  i'  0  Jolm.  .181. 

I  8  Scld.  1%.  •  6  JoliM.  126.  '»  17  W.iul.  661. 

8  Wend.  646.  »8Ilill,21H.  '»  I'J  John.  203. 

»  3  Srld.  106.  '•  8c well,  iy>4. 

*  3  Hrld.  106. 
s  .T  W.nd.  2«2. 

•  1  IJart).  Ch.  286. 
6  r»igc,  541. 


ACTIONS  AGAINST  SIIHIUFFS.  333 

by  the  order  ol  the  jilaintill",  he  and  tlie  oHi<;er  are  buth  trespassers.' 
And  so  any  one  who  directs  or  indemnifies  against  a  wrongful  levy 
is  a  trespasser.'  Projterty  exempt  from  execution  cannot  be  levied 
on,  but  the  defendant  may  turn  it  out  upon  execution  and  if  he  should 
do  so  he  can  not  afterwards  maintain  an  action  tlierefor  ;'  unless  in 
case  the  judgment,  or  some  part  thereof,  was  for  the  sale  of  intoxica- 
ting liquors,  when  any  levy  and  sale  of  exempt  property  even  with 
the  consent  of  the  defendant  is  declared  void.* 

^  840.  An  action  will  lie  against  the  sherifl'  for  any  unlawful  inter- 
meddling with  the  rights  or  the  property  of  a  third  person,  or  the 
exercise  or  dominion  over  it  in  defiance  or  to  the  exclusion  of  the 
owner,  as  where  he  arrests  one  under  the  supposition  that  he  is  the 
person  against  whom  he  holds  process  or  the  like,  or  where  he  seizes 
the  property  of  one  under  process  issued  against  another.  And  he 
will  be  a  trespasser  where  he  merely  levies,  thougli  there  is  no 
manual  interference  or  actual  possession.'  And  a  sale  bj'  an  oflicer 
of  property  belonging  to  another,  as  where  he  sells  sheep,  which 
are  in  a  large  field,  and  no  actual  possession  is  taken  or  removal 
made,  it  is  trespass,  and  an  action  will  lie  against  him  therefor.'  But 
where  the  ollicer  is  sued  in  such  case,  he  may  show  in  mitigation  of 
damages  that  the  property  was  subsequently  taken  out  of  his  custody  and 
applied  to  the  satisfaction  of  legal  claims  thereon.'  But  the  sherifl' will 
not  be  liable  to  such  action  at  the  suit  of  a  third  person,  where  the  goods 
are  mingled  with  those  of  the  debtor,  so  that  they  cannot  be  dis- 
tinguished until  the  owner  points  them  out  and  demands  them.^ 
Under  the  old  form  of  proceedings  in  replevin  it  was  questionable 
whether  the  sherifl'  was  liable  to  a  stranger  for  taking  his  goods, 
where  he  was  commanded  to  take  the  specific  goods  by  the  process.* 
It  would  seem  how^ever  that  he  is  not  so  liable  under  the  substituted 
proceedings  under  the  Code.  If  the  proceedings  are  in  due  form,  and 
the  property  is  in  the  possession  of  the  defendant,  or  of  his  agent,  and 
the  proceedings  of  the  sheriflf  are  regular  in  taking  possession  of  the 
property,  no  party  can  have  cause  of  action  against  him,  though  the 
defendant  should  not  own  the  property,  unless  a  claim  thereto  was  in  due 
time  and  in  due  form  interposed.  Perhaps  after  such  claim  is  inter- 
posed he  will  become  liable  to  the  owner  if  he  should  deliver  the  prop- 
erty to  the  plaintiff  in  the  action.  In  such  case  he  will  have  his  remedy 
over  upon  the   undertaking.     The   sherilT  will  not  be  liable   to  an 

»  10  Wend.  349.  ♦  L.aws  1842,  ch.  157,  ^3.  ^  2  Hill,  204,  &n. 

6  Barb.  79.  s  7  Cow.  735.  8  8  Pick.  443. 

a  15  Wend.  631.                             8  Wend.  610.  »  4  Denio,  446. 

5  Dcnio,  92.                               6  Barb.  79.  14  Barb.  oOG. 

3  1  Cow.  114.  6  8  Barb.  213. 

16  Wend.  562. 


334  ACTIONS  AGAINST  SIICIUFFS. 

action  al  ihc  suit  of  the  inortpigeo,  for  seizing,  selling',  and  ilclivering 
to  llio  purchaser,  goods  inortga^^cd,  upon  an  execution  against  the 
mortgagor,  when  by  the  terms  of  the  mortgage  he  lias  the  right  of 
possession  of  the  mortgaged  property  for  a  defmite  period.'  But  it 
is  otherwise  if  the  mortgagor  has  not  tlie  right  of  possession  for  a 
definite  period.'  Nor  will  the  sherilf  be  liable  to  the  lessor  of  gootis 
for  selling  them  as  the  goods  of  the  lessee,  |)articularly  before  the 
expiration  of  the  period.'  In  order  to  maintain  an  action  against  the 
sheriir,  the  party  must,  at  the  time,  have  the  riijjht  of  possession  of  the 
property.* 

<5  sn.  Where  the  sherifT  is  sued  by  the  defendant  in  the  action  in 
which  the  process  issued,  for  acts  done  thereunder,  it  is  not  necessary 
for  him  in  justifying  under  such  process,  that  he  should  show  a  judg- 
ment,* nor,  in  the  case  of  a  stranger  bringing  an  action  who  has  no 
title.'  Wiiere  the  process  is  valid  on  its  face,  its  production  is  all  that 
is  necessary  to  justify  the  oflicer  and  all  those  acting  in  his  aid  in 
making  an  arrest.  And  where,  in  such  case,  the  party  alleges  that  more 
force  was  used  than  was  necessary,  it  is  for  him  to  show  it.^  But  if 
a  stranger  sues,  who  shows  title  anterior  to  the  levy,  and  good  as 
against  the  defendant  in  the  execution,  then  the  shcrilV  can  only  justify 
by  showing  the  judgment,  for  he  can  only  defend  himself  by  attacking 
such  title  as  void  for  fraud  in  resjject  to  creditors. **  And  if  the  process  is 
an  attachment,  he  must  show  that  the  jiarties  at  whose  suit  it  issued, 
were  creditors  of  the  defendant  therein.^  Where  the  oflicer  justifies 
under  a  writ,  he  must  set  it  forth,  and  he  must  show  that  he  substantially 
pursued  his  authority.  If  the  court  out  of  which  the  writ  issues  has 
jurisdiction,  although  the  proceedings  are  irregular,  yet  the  writ  is  a 
sufficient  justification  to  the  sheriif,  even  if  set  aside  afterwards  for  the 
irregularity.  A  ca.  sa.  paid  will  protect  the  ollicer,  but  not  the  party  or 
his  attorney.'"  And  a  luiuisicrial  <jllicer  will  be  protected  in  the  execu- 
tion of  process  if  regular  and  legal  on  its  face,  though  he  has  knowledge 
of  facts  rendering  it  void  for  want  of  jurisdiction."  In  justifying  under 
process,  whetiier  mesne  or  final,  it  is  not  necessary  to  show  it  returned.'* 
Where  it  is  returned  it  may  be  proved  by  ii  certified  coj)y.  In  the 
case  of  a  constable,  the  execution  is  proved  by  the  docket  of  the  jus- 
tice, or  of  a  transcript  therefrom."  Although  the  statute  requires  the 
shorifl'  to  endorse  upon  the  execution  the  time  of  the   re<'eipl,  yet  if 

I  1  Ki-rn.Mi.  CarDly  v.  Hull.     «  16  Wend.  Rlt.  '«  Cow.  &  Hill's  notes,  1094. 

«  1  Com.  206.                                 '2;j       "      480.  W.itmm,  H6. 

»  2  Cow.  613.                                 6  Hill,  Htl.  8  Jolin.  64. 

«  1  K«Tn.in,  Cnnilv  v.  Hull.     »  10  ll.irh.  602.  4  Wcn.l.  677. 

•  12  Join.        '                 1.  17(1.   '"6  Mill,  2J2.  '»  2  H.  H.  2r,'.»,  C;240. 

2.'{  Win  1                    1 1.  2<;y.  "  6  Hill,  410.  U.  460,  <>172,  Itb  cJ. 
«  Cow.  fi.  U...  .  M-...^,  1070. 
T  10  Barb.  208. 


ACTIONS  ACAINST  SIIICUII  FS.  335 

he   fails  to  tlo  so,  lie   may  show  the   fact  l»y  parol.     The   statute  is 
merely  directory.' 

§  848.  Where  the  action  against  the  sherifl'  is  for  taking  the  goods 
of  a  stranger,  the  controversy  is  usually  upon  the  validity  of  the  plain- 
tifT's  title  as  derived  horn  the  judgment  dehtor,  which  is  impeaclied  on 
the  ground  that  the  sale  or  assignment  by  the  debtor  to  the  ]>laintifr 
was  fraudulent  and  void  as  against  creditors.  Here,  if  the  plaintifT 
has  never  had  possession,  so  that  the  sale  was  incomplete,  for  want  of 
delivery,  the  proof  of  this  fact  alone  will  suffice  to  defeat  the  action. 
But  if  the  transaction  was  completed  in  all  the  forms  of  law,  and  is 
assailable  only  on  the  ground  of  fraud,  the  sherifT  must  first  entitle 
himself  to  impeach  it,  by  showing  that  he  represents  a  prior  creditor 
of  the  debtor  ;  and  this  is  done  by  any  evidence  which  would  establish 
♦his  fact  in  an  action  by  the  creditor  against  the  debtor  himself,  with 
tho  additional  proof  of  the  process  in  the  sherilPs  hands,  in  favor  of 
that  creditor,  under  which  the  goods  were  seized.  This  evidence  has 
already  been  considered  in  the  case  of  actions  for  not  executing 
proce.ss  for  an  escape.  Where  the  issue  is  upon  a  fraudulent  convey- 
ance bv  a  debtor,  his  declarations  made  at  the  time  of  the  conveyance 
are  a  part  of  the  I'es  gestcc.'^ 

^  849".  In  an  action  for  the  unlawful  taking  by  color  of  his  office, 
either  money  or  other  valuable  thing,  for  services,  beyond,  whitdi  he 
is  entitled  i*.o  recover,  the  plaintifl*  must  prove  the  process,  and  if  it  be 
an  execution,  the  act  of  extortion.  Where  the  charge  is  for  the  taking 
illegal  fee."?,  tho^  sheriff  is  liable,  though  the  act  was  committed  by  his 
deputy,  and  it  it'  immaterial  whether  he  recognized  the  act  or  knew 
of  it  or  not.' 

^  850.  The  shen'fT  is  identical  in  contemplation  of  law  with  all  his 
officers,  and  is  civill}'  and  directly  responsible  for  their  acts,  defaults, 
torts,  extortions  or  otheT  misconduct,  whether  it  be  wilful  or  inadverl- 
ant,  in  the  course  of  the  execution  of  their  duties.*  He  is  liable  to  the 
party  aggrieved  for  the  tlefault  of  his  deputy,  for  any  neglect  in  the 
execution  of  process,  or  in',  returning  the  same,  for  an  escape  or  for  not 
paying  over  money  collected  on  execution  in  the  same  cases  and  to 
the  same  extent  as  if  the  de*faull  was  his  own.  So  too,  he  is  liable  to 
the  defendant  where  his  dep.uty  has  taken  illegal  fees,''  or  for  unlaw- 
fully taking  the  goods  of  ant>ther  upon  process.^  But  if  the  wrong 
complained  of,  not  being  itself  within  the  scope  of  the  authority  given, 
be  neither  expressly  sanctioned  by  the  sheriff,  nor  impliedly  com- 
mitted   by  his    authority,   he   is    not    responsible,  as  where   the    act 

»  8  John.  54.  *  2Grociil.  Ev.  <)bSO.  s  7  Jolin.  36. 

2  Greenl.  Ev.  597.  1  Woml.  H5.    15  Wend.  575.      «  Alien,  81. 

3  2  Greenl.  Ev.  63C.  7  Cow.  739.      7  Jobn.  35. 

7  John.  35.  Allen,  81. 


:i36  ACTIONS  ACAINST  SIIEIUITS. 

coinplaincil  of  arises  upon  the  execution  of  a  distress  warrant,  or  the 
like,  wliii'h  is  not  legal  jirocess.'  Nor  is  the  .sheritV  liable  to  the  plain- 
till'  for  the  nets  of  his  deputy,  wlicre  he  nets  out  of  the  ordinary  line 
of  his  duty,  by  direction  t»f  the  plaintilV.  Thus,  where  the  plaintilF  or 
his  attorney*  gives  the  deputy  special  directions  as  to  the  manner  of 
executing  process,  ns  by  enlarging  the  lime  on  an  execution,*  giving 
credit  to  a  purchaser,  or  the  like.  Hy  giving  such  special  instructions 
the  plaintilV  makes  the  deputy  his  private  agent,  and  he  ceases  to  bo 
the  servant  of  the  sherifl'.*  Where  a  deputy  holding  an  execution 
was  authorized  to  sell  land  on  credit,  by  the  plainllV's  attorney,  two 
hundred  dollars  to  be  paid  down,  and  the  balance  in  six  months,  but 
no  part  to  be  credited  on  the  execution  till  the  whole  was  paid  ;  this 
was  held  to  be  such  a  de|>arture  from  his  ordinary  duty,  that  the  sheriiV 
was  discharged  from  liability  even  for  the  amount  of  the  two  hundred 
dollars  paid  to  the  deputy  under  such  special  agreement.  The  sureties 
of  the  deputy  it  was  declared,  would  not  be  liable  in  such  case  to  the 
sheritr,  and  that  the  shcrill  ought  not  to  be  liable  for  the  acts  of  his 
deputy  unless  his  redress  against  the  deputy  and  his  sureties  was 
unquestionable.*  And  the  fact  that  the  sherilV  afterwards  executed  a 
deed  in  pursuance  of  the  sale  under  such  circumstances  by  the  deputy, 
does  not  operate  to  affirm  tiie  acts  of  his  deputy  and  adopt  them  as  his 
own  oflicial  acts,  especially  where  it  does  not  appear  that  he  had  full 
knowledge  of  such  special  instructions.*  Nor  where  the  deputy  has 
made  a  levy,  and  is  instructed  by  the  plaintifl'  or  his  attorney  to  delay 
or  do  nothing  until  further  directed,  is  the  sheritT  liable  for  the  property 
levied  on  by  the  deputy,  even  if  it  be  carried  olV  after  the  party  gives 
instructions  to  sell.^  And  if  a  deputy,  after  a  levy,  presuming  on  the 
assent  of  the  plaintifTs  attorney,  dei)arts  from  the  ordinary  course  of 
his  duly,  and  the  attorney  afterwards  allirms  his  acts,  neither  he  nor 
the  sheriir  is  liable  therefor.*  And  if  the  plaintiff  wishes  to  charge  the 
sherifT  for  the  subsequent  acts  or  neglect  of  the  deputy,  he  must  give 
notice  to  the  sherill*  himself  to  proceed.  Fresh  instructions  to  the 
deputy  will  not  be  sufficient. '  For  the  purpose  of  discharging  the 
sheriff  from  liability  for  the  acts  of  his  deputy,  it  must  be  shown  not 
only  that  the  plaintiff  directed  the  <leputy  to  depart  from  the  line  of 
duly  imposed  by  law,  but  that  the  deputy  fcdlowed,  or  at  least  under- 
took lo  follow  the  directions  given.  He  cannot  otherwise  be  regarded 
in  any  rcsjM'Ct  as  the  agent  of  the  plaintiff.  Thus,  where  the  deputy  was 
authorised  to  sell  on  a  (!redit,  and  lake  good  endorsed  notes,  and  he 

I  6  Bar»».  206.  «  6  Cow.  4W).     7  Cow.  789.  «  7  Cow.  739. 

8     "     6M.    All<ii  fMl.  I  l).-nir.,r,l«.  6Hnr1).  2%.  t  i  Dcniu.  f)J8. 

4  MaM  CO.    7  M.xiJi.  123.  H  H.irl).  nil.    Allen,  80.  •  3  Hill,  f>W. 

«  3  Iini,  M2.     7  Cow.  739.  »  7  Cow.  710.  •  1  Dciiio,  5  W. 
*  1  iK-iiio,  &i8. 


ACTIONS  AGAINST  SHERIFFS.  337 

took  a  note  without  an  cmlorser,  and  allowed  others  to  take  goods 
hought  hy  tlicni  without  payment  or  a  note,  it  was  IieM  that  the  shcrilT 
was  not  released  from  responsibiHty.'  A  false  representation  by  a 
deputy  of  the  form  of  his  return  to  an  execution,  whereby  a  party  was 
induced,  without  examination,  to  file  a  creditor's  bill,  is  no  ground  of 
action,  either  against  the  siierifT  or  the  deputy."  Nor  is  the  sherifT 
responsible  to  tlic  plaintitr  for  the  acts  ol"  a  si)ecial  dej)Uty  where  the 
appointment  of  such  deputy  was  at  his  request.  Nor  is  the  .sherifl' liable 
for  the  escape  of  a  prisoner  where  the  arrest  is  made  by  such  special 
deputy,  until  he  is  actually  in  jail,  or  in  the  actual  custody  of  such  oflif-er. 
Nor  can  the  plaintilV  rec^uire  the  sheriff  to  return  such  process,  but  it 
js  otherwise  of  the  other  parties  thereto.^  Where  the  property  of  the 
defendant  or  any  other  person  has  been  seized,  the  action  may  be 
against  the  sherilT,  or  against  the  deputy  who  executed  the  process,  or 
both.^ 

^  851 .  Where  the  sherifl"  is  sued  for  the  acts  or  defaults  of  his  deputy, 
it  is  sufficient,  prima  facie,  to  show  the  relation,  that  the  deputy  acted 
publicly  and  notoriously  in  that  character.'  But  a  return  to  process 
by  one  styling  himself  deputy  sherifl',  is  not  sufficient  as  against  the 
sheriff'.  And  if  the  deputy  is  not  a  general,  but  a  special  deputy, 
appointed  to  perform  a  particular  act,  proof  of  the  appointment  or 
deputation  must  be  given.  This  may  be  done  by  producing  the  writ- 
ten deputation  ;  or  if  it  cannot  be  done,  by  giving  the  sheriff  notice  to 
produce  it,  and  in  case  of  failure,  giving  parol  proof  of  its  contents. 
When  the  fact  of  the  relationship  is  established,  the  declarations  of 
the  deputy,  made  within  the  scope  of  his  authority,  and  while  the  process 
was  in  his  hands, 'and  in  the  course  of  execution,  are  to  be  taken  as 
part  of  the  7r.9  fj-cste  and  bind  the  principal,®  but  not  others.'  And 
where  the  admissions  of  the  deputy  tend  to  charge  himself,  and  he 
would  be  bound  by  the  record,  (and  he  is  thus  bouml  by,  and  the  record 
is  conclusive  evidence  against  him,  both  of  the  facts  which  it  recites, 
and  of  the  amount  of  damages,  whenever  he  is  liable  over  to  the  sheriff, 
and  has  been  duly  notified  of  the  pendency  of  the  action  and  required 
to  defend,)  then  in  all  such  cases,  such  admissions  are  competent  evi- 
dence as  against  the  sheriff.  This  principle  applies  to  all  declarations 
of  the  deputy,  without  regard  to  the  time  of  making  them.  But  if  the 
record  is  not  evidence  against  the  deputy  making  the  admissions,  his 
declarations  are  admissible  only  against  the  sheriff  when  thev  accom- 

1  3  Sold.  458.  *  Watcrburj-  v.  Wcsterrclt ;    «  10  John.  478.  6  Barb.  79 

2  5  Hill,  303.  in  Court  of  Appeals,  Cow.  &  Hill's  notes,  191 

3  Allen,  87.  March,  1854.  t  SeweU,  .34. 

Sewell,  46.  6  2  Greeol.  Ev.  ()582. 

Watson,  35. 

44 


33^^  ACTIONS  AGAINST  SIIF.RIFFS. 

panied  the  doing  the  an  roniplained  of,  ami  while  the  process  was  in 
his  hands  aiul  forming  part  of  the  rrs  s^rstir.^ 

^  S.")v;.  Actions  for  escapes  must  he  hroui;hl  within  one  year,'  and 
this,  whether  the  esraj>c  is  hcforo  or  after  the  committal.*  In  other 
cases,  ariions  against  a  sheritf.  roroner  or  ronstahle,  must  be  brought 
within  three  years,  whether  upon  a  hability  incurred  by  the  doing  of 
an  oflicial  act  in  his  oflirial  capacity,  and  in  virtue  of  his  oflice,  or  by 
the  omission  of  an  olficial  duty,  including  the  non-payment  of  money 
Collected  u|xin  an  execution.*  Hut  this  is  for  onicial  acts,  or  the  omis- 
sion o(  official  duty,  and  does  not  extend  to  acts  done  colore  officii.'^ 
The  artion  against  the  sherifV  must  be  brought  in  l)is  own  county.* 
But  this  is  for  affuinative  acts,  and  not  for  those  of  mere  omission  or 
neglect  of  official  duty,  as  for  not  paying  over  money  received  by  him 
as  such  slierifT.^  Where  the  action  is  local  against  the  sherifl^  one 
brou'jilt  against  his  re])resentatives  is  also  local."  Thougii  the  statute 
of  limitations  may  bar  an  action  against  the  sheriff  for  not  returning  a 
writ,  still  he  may  be  proceeded  against  by  attachment ;  but  in  such  case 
the  court  will  impose  no  fine,  but  will  discharge  the  attachment  on  his 
returning  the  writ  and  paying  costs.' 

^  853.  The  rule  that  "personal  actions  die  with  the  person"  is  appli- 
cable to  actions  against  the  sheriff  Thus,  an  action  will  not  lie  against 
the  representatives  of  a  sheriff,  for  an  escape  which  occurred  during 
his  life.'*  Xor  will  an  action  lie  against  the  executors  of  the  sheriff,  for 
the  default  of  liis  deputy  in  returning  process,  though  the  action  of 
assumpsit  be  given  by  the  statute,  unless  the  estate  of  the  deceased 
was  benefitted  by  the  act  complainod  of,  as  where  property  was  tor- 
tiously  taken  and  sold,  or  remains  in  specie  in  the  Iftnds  of  the  repre- 
sentatives." 

<5  851.  A  sheriff  sued  for  an  act  done  by  him  in  the  execution  of 
process,  is  entitled  to  take  upon  himself  the  defence  of  the  actionand 
to  retain  such  attorney  a.«  he  sees  fit,  notwithstanding  he  was  indem- 
nified by  the  party  suing  out  the  process ;  and  where  the  sherifl'  had 
retained  an  attorney,  it  was  held  that  such  party  had  no  right  to 
«ub«.tilute  another  in  his  place." 

^  S.W.  Formerly  sheriffs  were  entitled  to  double  costs,  when  judg- 
ment was  rendered  in  their  favor  in  any  action  brought  against  them  for 
any  act  of  misleasanre  or  nialfeasance  in  office.'^  But  it  is  held  that 
by  the   provisions  of  the  Code  they  arc  no  longer  entitled  to  receive 

I  2  0rc«»nl.  Er.  (fUM  »  10  Wmd.  288.  ">  1  CaincH,  124. 

«  C«-1«\</>1.  •  7  n..w.  I»r.  U.  2i8.  "  0  W.ikI.  21i 

»  7  Witi>l.  4'.4.  •>  I'l  W.n.l.  .JO.  i«  20  W.n.i   ('M>r) 

«  CcxI.'.  (/J2,  Hub.  1.  •  l:;  W.ri«l.  4(».  u  2  R.  H.  G17,  ^21. 

1J>  WcDd.  2M.  » 1  llill,  ri.  Id.  820,  V2,  4lh  c«l. 


ACTIONS  AGAINST  SUHIUi-FS.  339 

double  costs.     Tlie  right  of  the  court  to  give  Jiii  extra   alhiwanre  is 
said  to  be  a  convenient  substitute  for  double  costs.* 

§  85(5.  The  damages  to  bo  recovered  against  the  sherili'  will  in 
general  be  coniniensurate  with  the  extent  of  the  injury  sustained  by 
the  i»arty  aggrieved.  Where  he  is  sued  for  not  arresting  the  defend- 
ant, or  for  an  escape,  or  for  not  making  a  levy,  the  amount  of  the 
judgment  against  tbe  debtor,  is  i)rima  facie,  the  extent  of  the  injury 
w  hich  the  plaintilV  has  sustained  by  the  oflicer's  breach  of  duty ;  yet  if 
the  neglect  was  unintentional,  it  is  competent  for  the  ofTicer  to  j.rove 
in  mitigation  of  damages  any  fact  showing  that  the  plaintilf  has 
sulVered  little  or  nothing,  by  such  default  or  breach  of  duty.  If  the 
wrong  done  by  tiie  officer  was  not  the  result  of  design  to  injure,  and 
if  the  plaintiff  is  not  placed  in  a  worse  condition  than  he  would  have 
been  in,  had  the  officer  done  his  duty,  the  party  can  recover  no 
greater  damages  than  he  has  actually  suffered  by  the  wrong.  Thus, 
where  the  defendant  was  .sick  and  the  sheriff,  on  that  account,  omitted 
to  arrest  him,  he  may  show  this  in  mitigation  of  damages  and  that  he 
may  be  arrested  as  easily  as  before.'' 

^  857.  Where  the  action  is  for  an  escape  from  jail,  where  the 
prisoner  is  confined  on  mesne  process,  or  upon  surrender  in  exonera- 
tion of  his  bail,  made  either  before  or  after  judgment  rendered,  the 
sheriff  shall  be  amenable  to  the  extent  of  the  damages  sustained  by 
the  party.*  In  such  case  the  plaintiff  is,  prima  facie,  entitled  to  his 
whole  debt  which  he  could  have,  or  which  he  has  recovered  against 
the  debtor,  but  it  is  competent  for  the  officer  to  show,  in  mitigation  of 
damages,  the  debtor's  pecuniary  condition  ;  and  if  he  was  insolvent, 
the  plaintiff  can  recover  only  nominal  damages  for  such  escape.* 
And  if  the  plaintiff  can  recover  against  another,  this  is  a  ground  for 
a  reduction  of  damages.'  And  where  the  plaintiff  had  real  and 
competent  security  for  his  debt  and  relinquished  it  after  knowledge  of 
an  escape,  and  with  the  intent  to  charge  the  sheriff  with  the  debt,  it 
was  held  that  the  sherilf  might  avail  himself  of  that  fact,  in  mitigation 
of  damages.' 

^  858.  Where  a  prisoner,  in  execution,  in  a  civil  action  shall  escape 
without  the  assent  of  the  party  at  whose  suit  such  prisoner  was  com- 
mitted, the  sheriff  shall  be  answerable  therefor  to  such  party,  for  the 
debt,  damages  or  sum  of  money  for  which  such  prisoner  was  commit- 
ted, to  be  recovered  in  an  action  of  debt.^  In  such  case  if  debt  is 
brought,  the  sheriff  is  liable  only  for  ^le  amount  of  the  judgment, 
without  interest.^     But  if  the  action  is  case,  instead  of  debt,  the  party 

1  6  How.  Tr.  R.  45,  172,  253.  <  1  Jolin.  215.  «  7  John.  189. 

2  10  Mass.  470.  17  Wend.  643.  •?  2  R.  S.  437,  <>G3. 

2  Grcenl.  Ev.  <j599.  24      "       3.^1.  IcL  682,  (>83,  4(h  ed. 

3  2  R.  S.  437,  *>C2.  5  l  Cow.  Tr.  380.  »  6  How.  Pr.  R.  73. 

Id.  681,  ^82,  4th  ed. 


MO  ACTIONS  ACIAINST  Sllinill- FS. 

may  recover  his  ilaniai,'es  whatever  they  may  l)e.  but  the  sht-rilV  will 
he  at  liberty  to  show  matters  in  mitigation  ol'  damages.'  Where  the 
sherilT  is  liable  for  the  escaiHJ  of  one  of  several  defendants,  ho  is 
liable  fur  the  whole  debt  and  not  fur  a  projtortionate  j>art. 

^  851).  Where  the  sherilV  has  become  liable  as  bail  in  any  rase,  the 
rule  of  tiamages  is  the  same  as  when  he  is  sued  fur  an  escape. 

v^  S('»0.  Where  the  actiun  is  fur  not  j)aying  over  money  collected, 
the  recovery  will  be  the  amount  collected  with  interest  from  the 
return  day  of  the  process,  less  the  sherilFs  fees  on  the  process.'  If 
the  action  is  for  neglect  of  duty  in  not  levying  and  returning  an 
execution,  the  plaintitV  is  entitled,  j)rima  facie,  to  recover  the  amount 
of  the  judgment,  with  interest.^  But  the  sherilf  may  show  in  mitiga- 
tion of  damages  that  the  whole  sum  could  not  be  collected  upon  due 
diligence.'  But  it  will  be  no  defence  to  the  action  that  the  defendant 
in  the  execution  has  abundant  property  out  of  which  the  juilgment 
may  still  be  collected.*  Where  the  execution  of  process  has  been  in- 
terfered with,  so  as  to  relieve  the  sheritT  from  liability,  he  may  be 
required  to  return  the  process  and  on  failure  to  do  so  the  plaintifl'  will 
be  entitled  to  recover  nominal  damages.'  Where  the  sheriir  is  sued  for 
returning  nulla  bona,  instead  of  levying  on  certain  property  belonging 
jointly  to  the  debtor  and  another,  the  proper  measure  of  damages  is 
half  the  value  of  the  goods.' 

5  801.  Where  the  sherilF  seizes  the  goods  of  another,  if  trover  is 
brought,  the  real  value  of  the  goods  may  be  recovered  against  him.  If 
the  plaintiff  has  only  a  special  property  in  the  goods,- then  he  can  only 
recover  to  the  amount  of  surh  special  property."  But  if  the  action 
be  for  money  had  and  received,  only  the  moneys  for  whii^h  the  goods 
were  sold  can  be  recovered.  In  replevin  against  the  sheriff  for  flour 
taken  by  him  on  execution,  on  the  plaintiff's  electing  to  take  judgment 
for  its  value,  the  plaintilV  will  be  entitled  only  to  the  value  at  the  com- 
mencement of  the  suit,  with  interest  from  that  lime,  although  it  may 
appear  that  fluur  between  that  i>eriod  and  the  trial  was  worth  double 
the  then  market  value.  He  cannot  add  as  damages,  the  dillerence 
between  the  value  at  the  replevin  and  the  highest  subsequent  market 
value  up  to  the  time  of  trial.* 

2  HO'2.  The  official  bonds  of  sheriffs  arc,  in  form,  given  to  the  jieople 
of  this  slate,  but  they  are  held  for  the  benefit  of,  and  as  an  indemnity 
to  all  parlies  who  may  be  injured   by  the  default  or  misconduct  in 

I  2  Jf>lin.  451.    14  John.  266.  »  18  W^<1.  643.  •  1  Dn.io,648. 

1  Wi-mL  8U8.                             :i  iK-nio,  334.'  '  Srwill.  463. 
»  Auto,  (;420.                                 4  S.iiKlf.  07.  "AnU'.uHll'. 

2  Grccnl.  Ev.  6KS.  1  Hill,  275.  •  3  8.wlf.  G14. 
J  1  Hill,  276.     4  B*n<lf  C7.          0     "     65<». 

4  r,  Hiii,  -VV).     1  Um,  275.  ;i  ydd.  650,  106. 

3  Bcld.  560. 


ACTIONS  AGAINST  S II K RIFFS.  341 

ofTice  of  the  slieriir  executing  the  same.'  They  are  in  elTert  a 
security  not  only  to  suitors,  wlio  might  liave  a  direct  interest  in  the 
action  of  the  sheriff,  but  to  any  citizen  who  might  be  injured  by  his 
ofllcial  misconduct.' 

^  8G3.  The  condition  of  the  sherilf's  oflicial  bond  is,  that  lie  shall 
well  and  faithfully,  in  all  things,  perform  and  execute  the  office  of 
sheriff  of  the  county  during  his  continuance  in  said  office  by  virtue  of 
his  election,  without  fraud,  deceit  or  oppression.^  It  is  declared  that 
every  bond  taken  from  a  public  officer  shall  be  deemed  to  be  in  force 
and  obligatory  upon  the  principal  and  sureties  therein,  so  long  as  such 
ofliGer  shall  continue  to  discharge  the  duties  of  his  office,  and  until  his 
successor  is  apjwinted.^  The  sheriff's  bond  is  not  only  obligatory 
upon  him  and  his  sureties  to  this  extent,  but  also  during  the  time  he 
or  any  of  his  deputies  are  completing  the  execution  of  i»rocess  com- 
menced before  the  termination  of  his  oflice.'  And  in  the  case  of  an 
under  sheriff  it  is  provided  that  every  default  or  misfeasance  in  office 
of  such  under  sheriff  while  he  discharges  the  duties  of  sheriff  during 
a  vacancy  therein,  shall  be  a  breach  of  the  condition  of  the  bond 
given  by  the  sheriff  who  appointed  him.*  It  is  farther  provided, 
however,  that  the  sureties  in  any  official  bond  shall  be  exonerated 
from  all  liability  by  reason  thereof,  for  all  acts  or  omissions  of  the 
principal,  after  he  shall  have  renewed  any  official  bond  pursuant  to 
law.''  The  condition  of  the  sheriff's  bond  is  broken  whether  the 
act  complained  of  was  suffered  or  committed  by  the  sheriff  himself 
or  by  his  under  sheriff  or  deputy  or  jailer.  But  if  the  deputy  was  a 
special  deputy,  appointed  at  the  instance  of  the  party  aggrieved, 
neither  the  sheriff  nor  his  surety  will  be  liable  to  such  party,  for  the 
neglect  or  misconduct  of  such  special  deputy.^ 

^  864.  The  liability  of  the  sureties  of  a  sheriff  upon  his  bond,  is 
co-extensive  with  the  liability  of  the  sheriff  himself,  in  respect  to  all 
neglect  of  duty  or  acts  which  he  is  by  law  required  to  perform  as 
sheriff.  If  a  duty  is  imjiosed  by  law  Uj)on  a  sheriff,  as  such,  which  he 
is  bound  at  his  peril  faithfully  to  discharge,  and  it  is  neglected  without 
some  legal  excuse,  or  is  performed  in  an  improper  manner,  the  sureties 
are  liable.  A  neglect  of  duty  is  a  breach  of  the  condition  of  the  bond, 
although  it  should  not  involve  in  it  any  positive  act  of  fraud,  deceit  or 
oppression.'  If  he  refuses  or  neglects  to  return  processor  to  pay  over 
money  collected  by  him  on  execution,  or  received  upon  the  redemp- 

i  1  R.  S.  378,  ()67.  <  1  R.  S.  120,  ^32.  7  1  R.  S.  120,  ^30. 

Id.  GOG,  <)l'l-i,  4th  ed.  Id.  331,^29,  4th  ed.  Id.  331,  <yi3,  4th  cd. 

2  4  Com.  173.  5  AnU*,  ()6.  8  Ante,  <>850. 

3  1  R.  S.  358,  <)67.  6  1  R.  S.  879,  $72.  »  6  Wend.  454. 

Id.  696,  $124,  4th  ed.  Id.  G%,  $1-9,  4th  ed.  18  John.  390. 


3-12  ACTIONS  AGAINST  SIIFJIII- 1-S. 

lion  of  lands  sold  mi  execulii)ii,  the  condition  of  his  bond  is  hrtikcn.'  The 
sureties  of  ihe  sheritl'  arc  liahlo  for  money  received  by  him  on  execu- 
tion, afler  the  execution  of  the  bond,  though  the  procep  under  \vhi«h  it 
was  collectcil.  was  received  by  him  jtrcvious  to  the  giv^n^  the  bond."  It 
is  no  answer  to  mi  action  on  a  shcrilFs  bond,  lliat  he  is  sought  lo  be 
charged  for  the  non-performance  of  duties  created  subseciuenlly  to  the 
act  under  which  the  bond  is  executed,  ]»rovided  that  such  duties  existed 
at  the  dale  of  the  bond.  It  might  be  otherwise  if  new  duties  were 
imiK)seil  u|»on  the  sheritT  after  the  giving  the  bond.^  If  he  executes 
process  in  such  a  manner  that  the  rights  or  interests  of  others  are  im- 
paired, the  condition  of  the  bond  is  broken,  and  the  party  injured  thereby 
w  ill  be  entitled  to  leave  to  bring  an  action  thereon  for  the  recovery 
of  his  damages.  Thus,  the  plaintitVin  process  will  be  entitled  to  leave 
to  prosecute  the  bond  where  the  sherillhas  made  return  of  nulla  bona 
to  an  execution,  when  there  was  sulficient  properly. *  So  the  sureties 
of  the  sheriff  are  liable  on  the  bond  for  a  trespass  committed  by  the 
sherilVby  color  of  oirice,  as  where  he  levies,  under  process againsl  one, 
upon  the  goods   of  another.^ 

§  865.  Whenever  a  sheriff  shall  have  become  liable  for  the  escape 
of  any  prisoner  committed  to  his  custody,  or  whenever  he  shall  have 
been  guilty  of  any  default  or  misconduct  in  his  ollice,  the  party  injured 
thereby,  may  apply  to  the  supreme  court  for  leave  lo  prosecute  the 
ollicial  bond  of  such  sherilV.'  Such  application  shall  be  accompanied 
by  i)roof  of  ihe  default  or  delinquency  complained  of,  and  that  no 
salisfaclion  for  the  same  has  been  received ;  and  by  a  certified  copy  of 
such  orticial  bond.^  The  parly  moving  for  leave,  must  show  aflirma- 
livelv  that  the  sherilV  has  been  guilty  of  some  default  or  misconduct 
in  his  ofiice.'  It  is  not  necessary  that  a  previous  recovery  should  be 
had  against  the  sherilT  for  the  particular  default  lo  entitle  the  parly  lo 
leave  lo  prosecute  the  shenir's  bond,*  except  where  the  sherilV  has 
become  fixed  as  bail,  by  reason  of  the  neglect  to  justify  of  the  sureties 
of  one  arrested,  when  a  judgment  must  fust  be  recovered  againsl  him, 
and  an  execution  be  returned  unsalisfieil  in  whole  or  in  i»arl, before  leave 
will  be  granted  lo  prosecute  the  sherifl''s  bond.'"  If  the  claim  is  for  the 
non-payment  of  monev,  a  demand  thereof  must  first  be  shown." 

3  NtJO.  Up'->n  such  application  ami  proof,  the  court  shall  order  that 
such  bond  shall  be  prosecuted  ;  and  the  applicant  shall  thereupon  be 
authorized  to  prosecute  llie  same  in  the  said  supreme  court  only,  in 

1  0  Wend,  4&1.  »  4  Com.  17.3.  "  >  Hill,  '.7J. 

6     "        102.  •  2  U.  H.  47t5,<,l.  >  :.  Hill,  .".V.. 

.",  Biirb.  476.  M   7r.i,  U,   Ith  cl.  '"  r.«l.,  tVJtrJ. 

>  Ki  W.nd.  G23.  '  i:  U   S.  ifi',,  </l.  "  6  Wcud.  U»2. 

»  r,  Wrnd.  464.  I'i   7 IK,  </i,   llh  cd. 
«  6  Hill,  066. 


ACTIONS  AGAINST  SHERIFFS.  'M'.i 

the  name  of  the'people  of  this  state,  staling  in  the  process,  pleadings, 
proceedings  and  record  in  such  action,  that  the  same  is  brought  on 
the  relation  of  such  applit-ant.'  In  such  actions,  the  same  [>leadings 
and  proceedings  shall  be  had,  as  are  prescribed  by  law  in  the  cate  of 
suits  upon  bonds  with  other  conditions  tiian  for  the  ftayment  of  money, 
except  as  hereinafter  mentioned,  and  judgment  shaM  be  rendered  for 
the  defendants  in  the  hke  cases.  The  proceedings  upon  sherifl"s  bonds 
are  not  alVected  by  the  provisions  of  the  Code.'' 

^  807.  A  judgment  on  such  bond  shall  not  be  a  bar  to  any  other 
suit  that  may  be  brought  on  the  same  oflicial  bond,  by  the  same  plain- 
tiiT,  or  by  any  other  plaintifl',  for  any  other  delincjuency  or  default  of 
such  sherill",  than  such  as  was  assigned  as  a  breach  of  the  condition  of 
such  bond,  in  the  action  in  which  such  judgment  was  rendered.'  But 
the  sureties  are  not  liable  thereon,  beyond  the  i)enalty  of  the  bond.* 

§  8G8.  During  the  pending  of  any  suit  upon  such  official  bond,  or 
after  judgment  rendered  in  such  suit,  any  other  jiarty  aggrieved  by  the 
default  or  delinquency  of  sucli  sherifT,  may,  in  like  manner,  apply  to 
the'supreme  court  for  leave  to  prosecute  such  oflicial  bond." 

^  8G9.  Upon  such  leave  being  granted,  the  applicant  may  prosecute 
such  bond,  in  the  manner  hereinafter  mentioned  ;  and  the  pendency  of 
any  other  suit,  at  the  relation  of  any  other  person,  on  the  same  bond, 
or  a  judgment  recovered  by  or  against  any  other  person  on  such  bond, 
shall  not  abate,  or  in  any  manner  afiect  such  suit,  or  the  proceedings 
therein,  except  as  hereinafter  mentioned.' 

^  870.  Any  person  who  may  have  recovered  any  judgment  upon 
such  oflicial  bond,  may  in  like  manner,  apply  for  leave  again  to  prose- 
cute such  bond,  whenever  he  is  aggrieved  by  any  other  default  or 
delinquency,  than  such  as  shall  have  been  the  subject  of  the  former 
action,  and  shall  proceed  therein,  in  like  manner  as  hereinbefore  men- 
tioned.'' 

g  871.  No  such  suit  shall  be  barred,  nor  shall  the  amount  which  the 
plaintifl"  may  be  entitled  to  recover  therein,  be  aflected  by  any  plea  or 
notice  made  by  any  surety  in  such  bond,  of  a  judgment  recovered 
thereon,  unless  it  be  accompanied  by  an  allegation  that  the  sureties  in 
such  bond,  some  or  one  of  them,  have  been  obliged  to  pay  the  dam- 
ages assessed  in  such  judgment,  or  some  part  thereof,  for  tlte  want  of 
suflicient  property  of  such  sherifl'  whereon  to  levy  the  same,  or  that 
they  will  be  obliged   to  pay  the  same,  or  some  part  thereof,  for  the 

1  2  R.  S.  476,  <j3.         3  2  R.  S.  477,  (>5.        «  2  R.  S.  477,  $7. 

Id.  719,  ^3,  4th  ed.       Id.  711),  (>o,  4th  ed.       Id.  710,  <)7,  4th  ed, 

2  2  R.  S.  477,  <)-i.  *  0  Cow.  683.  7  2  R.  S.  477,  <)S. 

Id.  719,  <)4, 4th  ed.      5  2  R.  S.  477,  ^6.  Id.  719,  ^8,  4th  cd. 

Code,  ^471.  Id,  719,  ^6,  4th  ed. 


344  ACTIONS  A(^\I^'ST  siiF riffs. 

same  rcnson  ;  nor  unloss  surli  plea  or  notit^c  bo  verified  by  the  oath  of 
the  «leronclant  inakiiii;  the  same.' 

^  872.  If  it  ap|)ear  that  the  amount  of  any  damages  so  recovered, 
which  such  surety  has  been  oblitjcd  to  pay,  or  will  be  oblitjod  to  pay, 
as  specified  in  the  last  section,  is  equal  to  the  amount  for  which  su<'h 
defendant  shall  bo  liable  bv  virtue  of  the  bond,  he  shall  be  acquitted  and 
discharged  of  all  further  liability,  and  judgment  shall  be  rendered  in 
his  favor.' 

15  873.  If  it  shall  appear  that  the  amount  of  any  damages  so  recov- 
ered, and  which  surh  surety  has  been  obliged  to  pay,  or  which  he  will 
be  obliged  to  pay,  is  not  equal  to  the  amount  of  such  surety's  liability, 
the  amount  thereof  shall  be  allowed  to  such  defendant  in  establishing 
the  extent  of  his  liability  in  any  such  action.* 

^  871.  Whenever  judgment  shall  be  obtained  against  a  sheriff 
and  his  sureties,  a  direction  shall  be  indorsed  on  the  execution  issued 
thereon,  by  the  attorney  issuing  the  same,  to  levy  the  amount  of  such 
execution  in  tITe  first  place,  of  the  property  of  such  sheriff,  and  if 
sufficient  projierty  of  such  sheriff  cannot  be  found  to  satisfy  such 
execution,  then  to  levy  the  deficiency  of  the  property  of  the  sureties.* 

5  875.  In  every  such  case  of  a  judgment  against  a  sheriff  and  his 
sureties,  no  execution  against  the  bodies  of  the  defemlants  shall  be 
issued,  until  an  execution  against  the  property  shall  have  been  returned 
unsatisfied  in  whole*or  in  part.' 

;5  ^^70.  Whenever  several  judgments  shall  be  obtained  at  the  same 
term,  u])on  any  official  bond  of  a  sheriff,  fo^:  damages  amounting  in  the 
whole  to  more  than  the  sums  for  which  the  sureties  therein  shall  be  lia- 
ble, the  supreme  court  shall  order  the  moneys  levied  upon  such  juiigments 
from  the  property  of  the  sureties,  to  be  distributed  to  the  relators 
respectively  in  such  judgments,  in  pro|xirtion  to  the  amount  of  their 
res|>ective  recoveries." 

3  877.  If  executions  be  issued  upon  several  judgments  obtained  at 
the  same  term,  upon  any  such  oflicial  bond,  and  sullicipnt  moneys  shall 
not  be  raised  to  satisfy  all  of  the  said  executions,  the  supreme  court 
shall  distribute  the  moneys  collected  on  such  executions,  to  the  rela- 
tors res[)cclively  in  such  judgments,  in  proportion  to  the  amount  of 
their  resi)ective  recoveries.^ 

3  878.  No  scire  facias  shall  be  brought  upon  any  judgment  rendered 
upon  such  official  bond,  by  the  party  at  whose  relation  such  judgment 

1  2R.  H.  47R,  <>12  «  2  R.  8.  478,  f>ir).  «  2  R.  8.  ITH.  ^>17. 

M.  720,  <>12,  4lh  .a.  M.  720,  UG,  4lh  cd.  M.  72n,<;17,  4lh  c<i. 

a  2  R.  H.  47H,  ^13.  »  2  K.  H.  -jfs,  <,[r,.  ^  2  K.  H.  47«,  ^IH. 

M.  720,  a.!,  4th  i.d.  M.  720,  (A*),  4th  cd.  Id,  721,  Us,  4th  cd. 
»2R.  H.  4.H.  <,H. 

Id.  720,<il4,  4th  cd. 


ACTIONS  AGAINST  SHERIFFS.  345 

was  obtained,  or  by  any  other  person,  for  any  l)reach  of  the  condition 
of  such  l)on(l.' 

^  879.  Every  suit  i)rought  on  su(;h  ofllcial  bond,  and  every  judg- 
ment rendered  therein,  shall  be  deemed  the  private  suit  and  judgment 
of  the  party  on  whose  relation  the  same  shall  be  brought  or  obtained  ; 
such  suit  may  be  discontinued  and  the  relator  may  be  nonsuited,  as 
in  private  suits;  and  the  judgment  therein  may  be  cancelled  and  dis- 
charged by  the  relator,  in  the  same  manner  as  if  he  were  the  nominal 
plainlitr,  and  shall  be  deemed  satisfied  in  the  same  cases  as  judgments 
by  individuals.'  A  verdict  and  judgment  in  one  such  action  is  not 
evidence  in  another  action  to  charge  the  sureties.^ 

^  880.  If  the  suit  be  discontinued,  or  the  relator  be  nonsuited,  or 
judgment  be  rendered  for  the  defendants,  upon  verdict,  demurrer,  or 
otherwise,  costs  shall  be  awarded  against  the  relator,  as  if  he  were 
the  nominal  plaintilf,  and  judgment  shall  be  rendered  for  such  costs, 
and  execution  thereon  awarded  against  him,  in  the  same  manner.* 

»  2  R.  S.  477,  ^9.  3 19  Wend.  482. 

Id.  720,  f)9,  4th  cd  <  2  R.  S.  477,  <>11. 

a  2  R.  S.  477,  <:>10.  Id.  720.  ()U,  4lb  cd. 

Id.  720,  \^10,  4lh  cd. 


45 


THE  DUTIES  OF  COrtONERS. 


CHAPTER  I. 

OF  THE  ELECTION  AND  DUTIES  OF  CORONERS. 

3  881.  It  is  provided  by  statute  that  there  shall  be  elected  four 
coroners  for  every  county  in  this  state.'  The  constitution  declares 
that  such  coroners  shall  be  chosen  by  the  electors  of  the  respective 
counties  every  three  years,  and  as  often  as  vacancies  shall  happen.* 
And  the  statute  jirovides  that  they  shall  be  elected  in  the  same  manner, 
and  at  the  same  general  election,  as  sherills ;  hold  their  office  for  the 
same  time,  and  be  removable  in  the  same  manner.^  The  coroners 
first  chosen  in  any  county  that  may  hereafter  be  erected,  shall  be 
elected  at  the  general  election  next  succeeding  the  creation  of  the  coun- 
ty, or  at  such  other  time  as  the  legislature  shall  direct."*  When  the 
county  canvassers  shall  have  determined  who  is  elected  to  the  office 
of  coroner,  the  county  clerk  shall  prepare  a  certified  copy  of  the 
certificate  of  the  determination  of  such  board,  and  shall  deliver  the 
same  to  each  person  so  elected.^  The  name  of  each  person  so  elected 
shall  be  entered  by  the  secretary  of  state  in  a  book  to  be  kept  in  his 
office,  specifying  the  counties  for  which  they  were  severally  elected, 
and  their  place  of  residence,  the  office  to  which  they  were  respectively 
elected,  and  their  term  of  office.* 

2!  882.  No  person  shall  be  capable  of  holding  the  office  of  coroner, 
who  at  the  time  of  his  election,  or  appointment,  shall  not  have  attained 
the  age  of  twenty-one  years,  and  who  shall  not  then  be  a  citizen  of 
this  state. ^  And  it  is  declared  that  their  office  is  so  far  local,  as  to 
require  the  residence  of  every  person  holding  such  office,  within  the 
county  or  citv  in  which  the  duties  of  his  office  are  required  to  be 
executed.'  And  that  no  coroner  shall,  during  his  continuance  in 
office,  practice  as  a  counsellor,  solicitor  or  attorney,  in  any  court  of 

1  1  R.  S.  or,,  <)\.                       3  1  R.  S.  112,  <)49.  7  1  R.  S.  IIG,  <)\. 

Id.  305,  ()1,  4lh  cd.                   Id.  310,  ^60,  4th  cd.  Id.  327,  ^^1.  4tb  cd. 

2  Id.  000,  U.                             Ante,  ^1.  23  Wend.  602. 

Laws  1852,  eh.  289,  (;1.       <  1  R.  S.  110,<j50.  8  i  R.  S.  102,  ^15. 

«Coas.  Art.  X,  (\1.                        Id.  321,  (367,  4th  ed.  Id.  308,  ^13,  4ih  ed. 

5  1  R.  S.  354,  (\21,4thed. 

6  2  R.  S.  357,  v;48,  4th  ed.  • 


348      ^^l-  Tlir:  KLECTlON  A.M>  DUTIES  OF  CORONERS. 

law  or  C(iuity.'  Coroners  are  n<'t,  like  .slierills,  proliihitcd  fnmi  holding 
the  ollice  for  more  than  one  term  in  succession,  nor  from  holding  any 
other  office  nl  the  same  lime.' 

^  883.  The  ctironers  so  chosen,  mdess  ihey  shall  be  elected  to 
supply  a  vacancy  then  existing,  shall  enter  on  the  duties  of  their 
res[H*ctive  olFices  on  the  first  day  of  January  following  the  election  at 
wliich  they  shall  he  chosen,'  and  shall  hold  the  ofiice  for  three 
years,  whether  ihev  are  elected  at  the  close  of  a  full  term,  or  to  fill  a 
vacancy.*  Though  it  is  not  declared  in  terms  that  coroners  shall 
continue  to  discharge  the  duties  of  their  respective  oIVk'cs  until  a 
successor  is  chosen  and  has  duly  qualified,  yet  they  would  doubtless, 
should  the  question  ever  arise,  be  held  to  possess  that  right  under  the 
jirovisioits  of  the  statute,  which  declares  that  they  shall  hold  the  oflice 
for  the  same  lime  as  sherilfs.* 

^  88 1.  Every  person  elected  or  api)ointed  to  the  office  of  coroner, 
before  he  shall  enter  upon  the  duties  of  such  office,  shall  take  the 
constitutional  oalh  of  office.*  Such  oath  shall  be  taken  and  sub- 
scribed and  deposited  in  the  office  of  the  clerk  of  the  county 
within  fifteen  days  after  the  officer  shall  be  notified  of  his  election  or 
ajtjX)intment,  or  within  fifteen  days  after  the  commencement  of  his 
term  of  office.^  And  if  any  person  shall  execute  any  of  the  duties 
or  functions  of  such  office  without  having  taken  and  subscribed  the 
oath  of  office  required  by  law,  he  shall  forfeit  the  olRce  and  shall  be 
deemed  guilty  of  a  misdemeanor  and  punished  by  fine  or  imjirison- 
menl."  Notwithstanding  such  neglect  to  take  the  oalh  he  will, 
h«»wever,  so  far  as  the  rights  of  third  persons  and  the  public  are 
concerned,  be  considered  an  ollicer  de  facto.* 

^885.  Coroners  may  resign  their  office  to  the  governor.'"  Coro- 
ners may  also  be  removed  from  office  by  the  governor,  on  charges 
jireferred  against  them,  in  the  same  manner  as  sherifis."  And  their 
office  will  become  vacant  on  their  ceasing  to  be  inhabitants  of  the 
fouiily  for  which  they  shall  have  been  chosen  ;  on  their  conviction  of 
an  infamous  crime,  or  any  offence  involving  a  violation  of  their  oath  ot 
office,  and  on  their  neglect  or  refusal  to  lake  the  oath  of  office,  within 
the  lime  required  by  law ;"  and  on  their  accej)lance  of  another  office 

'  1  B.  8.  110,  <,21.  5  Ante,  ^881.  'o  1  R.  8.  121,  ^'13. 

M   Z'2l ,  <,03,  Ith  c«l.  •  1  R.  S.  110,  <;20.  M.  332,  <)M,  -lUi  cd. 

•  Ante,  </J.  Id.  ;5;}(t,  v22,  Jth  od.  "  Anto,  <,\0. 

»  1  R.  H.  no,  <,Z.  7  1  R.  H.  ll'.i.  </2l.  1  K   8.  112,  <>49. 

h\.  327,  </.l  4lh  cd.  Id.  330,  v23,  Uh  cd,  M   31't,  </.!>,  Jth  «'d. 

*  2  W.iid.  272.  •  1  R.  8.  121,  <;31.  •    '«  1  R.  H.  122,  <;3». 

1 1  W.:nd.  132.  511.  M.  :{:!1 ,  ^ll,  .Itli  ed.  Id.  332,  (^38,  -lUi  cd. 

1  R.  H    l\2,<,4\>.  »  1  I>cMo,  676. 

Id.  311*,  yW,  4lb  i-d. 


OF  THE  ELECTION  AND  DUTllCS  OF  CORONERS.       349 

the  duties  of  which  arc  iiicoinpcilible  with  those  of  tiic  ollice  of 
coroner.* 

^  886.  When  a  county  is  divided,  and  a  part  is  set  ofl'  to  another 
county,  or  a  new  county  is  formed,  witli  a  new  name,  the  coroner  or 
coroners  residing  in  such  ])arts  of  the  county  so  set  ofl*  lose  their 
oflice ;  but  it  is  otherwise  if  they  reside  in  the  part  of  the  county 
which  retains  the  old  name." 

g  887.  [['  any  sheriff,  jailer,  coroner,  marshal  or  constable,  shall, 

1.  Wilfully  and  corruptly  refuse  to  execute  any  lawful  process 
directed  to  them,  or  any  of  them,  re(iuiring  the  ajiprehension  or 
confinement  of  any  i)erson  charged  with  a  criminal  ofl'ence  ;  or, 

2.  Shall  corruptly  or  wilfully  omit  to  execute  such  process  by  which 
such  person  shall  escape  ;  or, 

3.  Shall  wilfully  refuse  to  receive  in  any  jail  under  his  charge,  any 
oflender  lawfully  committed  to  such  jail,  and  ordered  to  be  confined 
therein,  on  any  criminal  charge  or  conviction,  or  on  any  lawful 
process  whatever ;  or, 

4.  Shall  wilfully  sufl'er  any  ollender,  lawfully  committed  to  his 
custody,  to  escape  or  go  at  large ;  or, 

5.  Shall  receive  any  gratuity  or  reward,  or  any  security  or  engage- 
ment for  the  same  to  procure,  assist,  connive  at  or  i)ermit  any  prisoner 
in  his  custody  on  any  civil  process  or  on  any  criminal  charge  or 
conviction,  to  escape,  whether  such  escape  be  attempted,  or  effected, 
or  not; 

He  shall,  upon  conviction,  be  imprisoned  in  a  county  jail  not  exceed- 
ing one  year,  or  by  fine  not  exceeding  one  thousand  dollars,  or  by 
both  such  fine  and  imprisonment,  and  shall  forfeit  his  oflice,  and  shall 
forever  be  disqualified  to  hold  any  oflice  or  place  of  trust,  honor  or 
profit  under  the  laws  or  constitution  of  this  state. ^ 

§  888.  Every  person  holding  or  exercising  any  oflice  under  the 
laws  or  constitution  of  this  state,  who  shall,  for  any  reward  or  gratuity, 
paid  or  agreed  to  be  paid,  grant  to  another  the  right  or  authority  to 
discharge  the  duties  of  such  oflice,  shall,  ui)on  conviction,  be  deemed 
guilty  of  a  misdemeanor,  and  in  addition  to  the  punishment  prescribed 
in  cases  of  misdemeanors,  he  shall  forfeit  his  oflice  and  be  forever 
disabled  from  holding  such  office.^ 

^  889.  When  a  vacancy  shall  exist  in  the  oflice  of  coroner,  the 
governor  shall  appoint  s^.ime  suitable  person,  who  may  be  eligible  to 
the  oflice,  to  execute  the  duties  thereof  until  the  commencement  of 
the  political  year  next  sq^ cecding  the  first  annual  election  after  the 

I  2  Hill,  93.  3  2  R.  S.  684,  ^^18, 19.  *  2  R.  S.  696,  ^35. 

8  Cow.  212.  Id.  867,  ^^18, 19, 4th  cd.         Id.  878,  ()S7,  4lh  ed. 

»  Ante,  $9. 


350       OF  THE  ELECTION  AND  I)Urii:S  OF  CollU.Nl::KS. 

hapjiening  of  the  varaiirv  at  wliicli  such  ullicer  could  be  by  law 
electeil  ;  and  the  |>erson  so  a|>j)ointeil  to  till  such  var.ancv.  slialj  possess 
all  the  rights  and  powers,  and  be  subject  to  all  the  liabilities,  duties 
and  obligations  of  such  ollicer,  as  they  are  now  or  may  hereafter  bo 
prescribed  by  law.'  The  |H'rson  so  appointed  may  be  removed  by 
the  governor  at  any  time,  without  cause,  and  he  may  appoint  another  in 
his  place.* 

^  SiM>.  \'acancies  in  the  'oiricc  of  coroner  shall  be  supplied  at  the 
general  election  succeeding  the  happening  thereof.'  If  the  vacancy 
be  n«U  supplied  at  the  general  election  next  succceiliiiLT  the  hapi>ening 
thereof,  asj»ecial  election  to  supj>ly  such  vacancy  .shall  then  be  held.* 
If  the  vacancy  be  not  supplied  by  reason  of  two  or  more  cajididates 
having  an  ecjual  number  of  votes  for  the  same  ofhce,  the  sj)ecial  elec- 
tion shall  be  ordered  by  the  board  canvassers,  having  the  power  to 
determine  on  the  election  of  the  officer  omitted  to  be  chosen,  and  in 
all  other  cases,  such  election  shall  be  ordered  by  the  governor,  who 
shall  issue  his  proclamation  therefor,*  in  which  he  shall  specify  the 
county  where  such  election  is  to  be  held  ;  the  cause  of  such  election  ; 
the  name  of  the  ollicer  in  whose  ofricc  the  vacancy  has  occurred  ;  the 
time  when  his  otlice  will  e.xjiire,  and  the  day  (»n  which  such  election 
shall  be  held,  which  shall  not  be  less  than  twenty,  nor  more  than  forty 
days  from  the  date  of  the  jiroclamation.' 

5  891.  In  each  of  the  counties  of  this  state,  with  the  exception  of 
the  city  and  county  of  iVew  York,  the  jurisdiction  of  the  coroners 
chosen  in  and  for  such  counties  respectively,  is  oo-e.\tensive  with  the 
limits  of  the  county,  and  though  there  be  several  coroners  in  the  same 
county,  any  one  can  execute  any  duty  imposed  by  law  on  coroners  in 
any  part  of  the  county.  Formerly  but  one  coroner  was  chosen  for 
the  city  and  county  of  New  York,  whose  jurisdiction  was  likewise 
co-extensive  with  the  limits  thereof;  and  it  was  provided  by  statute 
that  in  case  of  the  absence  of  said  coroner,  or  of  his  inability  to  attend 
from  sickness  or  any  other  cause,  at  any  time,  any  alderman  or  special 
justice  of  the  city  may  j»erform  during  such  absence  or  inability,  any 
duly  apjtertaining  to  the  office  of  coroner  of  the  said  city,  under  the 
provisions  of  the  statute  concerning  coroners'  inquests  ;  and  such 
alderman  or  justice  shall  possess  the  like  authority,  and  be  subject  to 
the  like  obligations  and  penalties  as  said  coroner.^  It  is  now  provide*! 
by  law  that  four  coroners  in  the  city  and  county  of  New  York,  instead 
of  one  as  heretofore  provided  by  law,  shall  be  elected  in  the  same 
manner,  and  at   the  same  general  election  .as  sheriffs  ;  hold  the  office 

>  1  R.  8.  836,  (/»'),  4lli  cJ.        «  1  n.  H.339,  ^0,  4th  od.  i  2  R.  H.  743,  (p. 

»  r,  Hill.  49.  »  1  U.  .S.  33U,  MO,  4lh  c<l.  M.  WO,  </.»,  ilh  cJ. 

>  1  K   .'<  .';3H,  (^,  4tl.  ••.!.         •  1  K.  8.  839,  <>11,  4lb  cd. 

Uh5  1H17,  ch.  240,  (fi. 


OF  THE  ELECTION  AND  DUTIES  OF  CORONERS.       .'^51 

for  the  same  (erin,  an<l  be  removable  in  the  same  manner.'  The  mayor 
of  said  city  shall,  before  the  eoroncrs  elected  under  tlie  said  ru-t  shall 
enter  upon  the  duties  of  the  office,  assif^n  one  of  the  said  coroners  to 
each  of  the  senate  districts  of  the  city  of  New  York,  and  they  shall 
respectively  exercise  their  powers  during'  the  term  for  which  they  are 
so  elected,  within  the  district  to  which  they  shall  be  respectively 
-  assigned;  and  all  the  provisions  of  law  ap[>licable  to  the  coroner  of  the 
city  and  county  of  New  York,  shall  be  applicable  to  the  officers  elected 
under  said  act,  except  as  to  the  nundjer  to  be  elected.'^  In  case  of  the 
absence  or  inability  of  either  of  said  coroners  to  discharge  the  duties 
of  their  respective  offices,  some  alderman  or  special  justice  of  the  citv 
must  discharge  such  duties,  and  not  one  of  the  other  coroners.  Their 
jurisdiction  is  restricted  to  the  district  to  which  they  may  have  been 
designated.^ 
^  892.  The  duties  of  coroners  are  : 

1.  To  hold  inquests  upon  the  bodies  of  persons  slain,  or  who  have 
suddenly  died,  or  who  have  been  dangerously  wounded,  or  found  dead 
under  such  circumstances  as  to  require  an  inquisition,  within  their 
jurisdiction  :* 

2.  To  issue  process  for  the  arrest,  and  to  take  the  examination  of 
one  charged  upon  inquest,  with  murder,  manslaughter,  or  assault :' 

3.  To  act  as  conservative  of  the  peace  within  their  county,  and  for 
this  purpose  they  are  clothed  with  all  the  powers  of  the  sheriffs  or 
constables  of  such  county  :' 

4.  To  execute  process  whenever  the  sherifT  of  any  county  shall  be 
a  party  in  any  suit :'' 

5.  To  discharge  the  duties  of  the  office  of  sherifl'  of  the  countv 
whenever  there  is  a  vacancy  in  the  office,  and  there  shall  be  no  under 
sherifl'  of  such  county  then  in  office,  on  being  designated  for  that  pur- 
pose by  the  county  judge  :' 

G.  And  to  take  charge  of  any  wrecked  jiroperty  which  may  be  found 
within  their  jurisdiction.*  Their  duties  under  this  statute  have  already 
been  pointed  out."* 

^  893.  The  duties  of  coroners  upon  inquests,  and  in  the  examina- 
tion of  prisoners  charged  upon  inquest  with  murder,  manslaughter,  or 
assault,  cannot  be  delegated."  Such  duties  must  be  executed  by  them 
in  person,  and  not  by  deputy.     But  where  a  coroner  is  designated 

1  2  R.  S.  090,  <)\,  4th  ed.  s  o  R.  S.  743,  %6, 7.  MR.  S.  380,  (^78. 

Laws  1852,  ch.  280.  (>!.  M.  025,  (>(j6,  7,  4th  cd.  Id.  608,  ()135,  4th  ed. 

2  2R.  S.  900,  ^2,  4th  cd.  «  2  Hawkin.V  P.  C.  70.  »  1  R.  S.  GOO,  w;i,  &c. 

Laws  1852,  ch.  289.  ^2.        7  2  R.  S.  441,  (\84.  2R.  S.  100,  wU,  &c.4thcd. 

3  2  R.  S.  900,  ^3.  Id.  686,  (J107,  4th  ed.  i"  Ante,  %T2S,  &c. 

Laws  1852,  ch.  289,  ^3,  Code,  ^419.  "  2 Hales  Cr.  L.  58. 

<  2  R.  S.  742,  <>1. 
Id.  025,  ()1, 4th  cd. 


352  CRIMES  COc^.XIZAlU.E  nv  CORONr:RS. 

under  the  provisions  of  the  statute  lo  )>crforiu  the  duties  of  the  oflice 
of  sheritl*  of  his  county  (hirinij  a  varancy  therein,  he  i>osses.ses  all  the 
powers  of  sheritf.  and  of  course  must  possess  the  right  of  appointing 
deputies  to  aid  him  in  the  discharge  of  such  duties.' 

^  894.  The  sudden  violent  deaths  which  are  within  the  coroner's 
office  lo  inquire,  are  of  these  kinds  : 

1.  From  the  visitation  of  Clod  : 

2.  Hy  chance,  where  no  other  had  a  hand  in  it,  as  if  a  man  falls 
from  a  house  or  cart : 

3.  Hy  his  own  hand,  as/t/o  (h'  se : 

4.  Hy  the  hand  of  another  where  the  otfender  is  not  known  : 

5.  By  the  hand  of  another,  where  the  ofl'ender  is  known,  whether 
hy  murder,  manslaughter,  in  self-defence,  or  by  chance." 

But  it  is  not  necessary  that  an  inquest  should  he  held  in  the  case 
of  one  dying  with  a  fever,  apoplexy,  or  other  disease.'  The  coroner 
can  in  no  case  hold  an  inquest,  except  upon  view  of  the  body,  and 
when  it  has  been  buried,  he  must  dig  it  up,  and  after  he  and  the  jury 
summoned  to  make  inquest  have  viewed  it  together,  he  shall  cause  it 
to  be  buried  again.* 

.  ^  895.  Whenever  a  convict  shall  die  in  any  state  prison,  it  shall  be 
the  duty  of  the  insjxictor  having  charge  of  th-e  prison,  and  of  the  warden, 
physician  and  chaplain  of  the  prison,  if  they  or  either  of  them  shall 
have  reason  to  believe  that  the  death  of  the  convict  arose  from  any 
other  than  ordinary  sickness,  to  call  upon  the  coroner  having  jurisdic- 
tion, to  hold  an  inquest  upon  the  body  of  such  deceased  convict.*  It 
Trill,  of  course  be  the  duty  of  the  coroner,  to  hold  such  in(|uest  on  a 
prisoner  in  a  county  jail,  or  other  place  of  confmement  of  convicts 
who  dies  an  unnatural  death  ;  and  it  is  said  that  even  if  he  dies  a 
natural  death,  yet  regularly  the  gaoler  ought  to  send  for  the  coroner, 
to  infjuire,  because  it  may  be  possibly  presumed,  that  the  prisoner  died 
by  the  ill  usage  of  the  jailer." 

CHAPTER  II. 

CRIMES  COGNIZABLE  BY  CORONERS. 

5  son.  As  it  is  the  duty  of  the  coroner's  jury  to  find  whether  the 
death  be  murder,  manslaughter,  or  justifiable  or  excusable  homicide, 
or  suicide  ;  and  who  were  the  principals,  and  who  the  accessaries  in 
the  death  or  wounding,  a  brief  definition  will  be  given  of  the  various 
cases,  as  well  to  enable  them  rightly  to  determine  from  the  circum- 
itances   proved  before  them,  the  nature  of  the  oflence,  as  to  aid  the 

»  Allen,  871.  »  2  II.iIo'b  Cr.  L.  57.  »  2  R.  8.  962,  $102,  4lh  od. 

»  2  Halt's  Cr.  L.  62.  *  2  ll.-»«kiiui'  P.  C.  77.  •  2  UaloJi  Cr.  L.  67. 


CRIMES  COGNIZAIILi:  I5V  CORONERS.  353 

coroner   in  his  investigation,  when    he   issues    his    warrant    f<»r    the 
arrest  of  the  party  chari^ed  willi  the  crime. 

1.      MrKI)i:U. 

^  897.  Murder  is  the  killina  of  a  human  l)eing  without  auihority  of 
law,  by  poison,  shooting,  stai)ljing,  or  any  otiier  means,  or  in  any  othfr 
manner : 

1.  When  [)erpefrate(l  from  a  premeditated  desiLrn  to  efft'Ct  tho  death 
of  the  f)ers(>n  ivilled,  or  of  any  human  being;'  and  it  maices  no  dilfer- 
ence  whether  the  design  is  formed  at  the  time  of  striking  the  fatal 
blow,  in  the  heat  of  passion,''  or  months  before.  It  is  enough,  that  the 
intent  precedes  the  act,  although  that  follows  instantly.^  But  it  is  not 
murder  to  kill  an  unborn  child ;  and  it  makes  no  diflerence  that  it  was 
partially  produced,  or  had  l)reathed  before  it  was  born,  or  was  in  the 
progress  of  birth.  To  constitute  the  killing  of  a  child,  murder,  it  must 
have  been  absolutely  produced,  and  be  alive;  tliough  it  need  not  have 
breathed  ;  norwill  it  make  any  diflerence  that  it  was  still  attached  by  the 
umbilical  cord.*  In  all  cases  of  this  class,  it  must  be  remembered  that 
stronger  evidence  of  intentional  violence  will  be  required  than  in  other 
cases;  it  being  established  by  experience  that  in  case  of  illegitimate 
birth,  the  mother  in  the  agonies  of  pain  or  despair,  or  in  paroxysm  of  tem- 
porary' insanity,  is  sometimes  the  cause  of  the  death  of  her  oflsj)ring 
without  any  intention  of  committing  such  crime,  and  that  therefore 
mere  appearances  of  violence  upon  the  child's  body  are  not  sufficient 
to  establish  her  guilt,  unless  there  be  proof  of  circumstances  showing 
that  the  violence  was  intentionally  committed  ;  or  the  marks  are  of 
such  kind  as  of  themselves  to  indicate  intentional  murder  :^ 

2.  And,  it  is  murder  when  the  death  is  perpetrated  by  any  act  imme- 
diately dangerous  to  others,  and  evincing  a  depraved  mind  regardless 
of  human  life,  although  without  any  premeditated  design  to  efl!ect  the 
death  of  any  particular  individual  f  as  where  one  shoots  at  another  on 
horseback,  with  the  intention  of  causing  the  horse  to  throw  the  rider,  and 
he  hits,  and  kills  another.'  So,  where  two  are  racing  in  a  public  road,  at 
a  dangerous  and  furious  rate,  and  each  inviting  the  other  to  drive  at  a 
dangerous  and  a  furious  rate,  and  the  horse  of  one  of  them  runs  over 
and  kills  a  person  in  the  street,  both  are  guilty  of  murder,  and  it  will 
be  no  defence  that  the  death  was  caused  partly  by  the  negligence  of 
the  deceased  himself,  or  that  he  was  either  deaf  or  dumb  ;" 

3.  Or,  when   perpetrated  without  any  design  to  effect  death,  bv  a 

>  2  R.  S.  G56,  ^4,  sub.  1.  •<  5  Car.  &  P.  329.  s  3  Grconl.  Ev.  (^ISC,. 

Id.  843,  *Ji,sub.  1,  4thed.       0        "  340.  «  o  R.  S.  657,  U,  sub.  2. 

8  3  Selil.  396.  7        "  814,  850.  Id.  843,  (U,  sut).  2,  4tli  cd 

9  3  Seld.  385.  9        "  25.  t  Barb.  Cr.  L.  27. 

1  C.ir.  &  M.  650.  9  2  C.ir.  &  K.  230 

3  Grocul.  Ev.  <AS6. 

46 


:r>l  I'RIMES  COUNIZAULK  U\   e'OUUNKIlS. 

jioisi'ii  ongageil  in  llic  commission  of  a  felony.'  If  the  only  ollence  of 
wluoli  the  prisoner  is  giiiliy  nl  ilu*  time  nf  the  kilhni^  is  the  heating  the 
deoeased,  of  which  he  died,  it  is  for  the  jury  to  say  whether  it  he  mur- 
der or  manslaui^'hter  :' 

•1.  When  an  inhahitant  «»r  resident  of  this  state,  who  shall  hy  j)revi- 
ous  np|H>inlment  Or  engagement,  fight  a  duel,  without  the  jurisdiction 
of  this  state,  and  in  so  thung  shall  inflict  :i  wound  u)>on  his  antagonist 
or  any  other  person,  where<d"  the  person  thus  iujuretl  shall  die  within 
this  stale,  every  such  person,  and  every  second  engaged  in  such  duel, 
shall  he  deemed  guilty  of  nnu'der  within  this  state,  and  may  be  indicted 
and  tried,  and  convicted  in  the  county  where  such  death  shall  happen.' 

i3  t^98.  To  constitute  murder  there  must  be  an  actual  killing,  and  as 
a  general  principle,  violence  or  corporeal  damage  to  the  j»arty.  But  if 
one  does  an  act,  the  probable  conseciuence  of  which  may  be,  and  event- 
ually is  death,  such  killing  may  be  murder,  although  no  stroke  be  struck 
bv  him,  and  no  killing  may  have  been  previously  intended.*  Thus  where 
a  mother  of  a  child  leaves  it  in  a  remote  place,  where  it  is  not  likely  to, 
be  found,  as  on  a  barren  heath,  and  its  death  ensues,  it  is  murder.'  Or, 
where  a  harlot  left  her  child  in  an  orchard  and  covered  it  with  leaves 
where  it  was  killed  by  a  kite  ;*  or  where  one  exposes  her  child  in  a 
pig  stye,  and  it  is  destroyed ;''  or  where  the  parish  oflicers  shifted  a 
ciiild  from  parish  to  parish,  until  it  died  for  want  of  care  and  sustenance;' 
or  where  one  carried  his  sick  father  against  his  will,  in  a  severe  season, 
from  one  town  to  another,  by  reason  of  which  he  died  ;  or  where  a 
jailer  confuies  a  prisoner,  whom  l»e  knows  never  had  the  small  pox, 
au'ainst  his  will,  with  one  who  has  it,  and  he  catches  it  and  dies.*  But, 
as  has  been  said,  as  a  general  rule,  there  must  be  some  external  violence, 
or  corporeal  damage  to  the  party  ;  and  the  mere  working  ujwn  the 
fancy  of  another,  or  by  harsh  or  unkind  usage  which  puts  him  into  a 
iiassion  of  grief  or  fear,  that  he  dies  suildenly,  or  contracts  a  disease 
which  causes  his  death,  the  killing  is  not  such  as  the  law  can  notice.'" 
All  homicide  is  presumed  to  be  malicious  until  the  contrary  ap|)ear." 
Where  it  appears  that  one's  death  is  occasioned  by  the  hand  of  another, 
it  is  lor  that  other  to  show,  either  by  evidence,  or  inference  from  the  cir- 
cuujstances  <jf  the  case  that  the  oflence  is  of  a  mitigated  cJiaracter.and 
does  ui>t  amount  to  murder.'^ 

'J.    M  W.-L.M  i.in  li:    IN     1111.    I  IKST    nr.cRi'.E. 

J  899.  The  killing  of  a  human  being,  without  design  to  eflect  death, 

I  2  11  '    "uh.  3.            *  Wnrh.  ("r.  L.  :J0.  »  Iini><y,  61. 

M  t..  3,  4lli  e«l.  s  1  r;^r.  &.  M,  Kil.  "<>  IJ.irh.  Cr.  L.  31. 

t  I'j  \  •  Ilarl..  (Jr.  L.  31.  "  1  Hill,  377. 

12  11  Ml.  32.  '»  b  C»r.  &  1*.  35, 

M.  m;,  v,  Uh  c<i                 •  n..  31, 


CRIMES  COGNIZABLE  BY  CORONERS.  355 

bv  the  act,  procurement  or  culpahlo  nef,Higence  of  any  oilier,  while 
such  other  is  engaged, 

1.  In  the  |)e)|)etration  of  any  crime  or  misdemeanor,  not  amounting 
to  a  felony  :  or, 

2.  In  the  attempt  to  perjietrate  any  such  criuic  or  misdemeanor, 
though  willuuit  design  to  kill  ;' 

In  cases  where  such  killing  would  be  munler  at  the  common  law, 
shall  be  deemed  manslaughter  in  the  first  degree.^  If  the  only  olVcnce 
of  which  the  accusetl  is  guilty,  is  the  beating  the  deceased,  of  which 
he  dies,  the  ollence  is  not  necessarily  manslaughter,  but  may  be  mur- 
der, and  it  is  for  the  jury  to  say  which.* 

3.  Every  person  deliberately  assisting  another  in  the  commission  of 
self-murder,  shall  be  deemed  guilty  of  manslaughter  in  the  first  degree.* 

4.  The  wilful  killing  of  an  unborn  quick  child,  by  an  injury  to  the 
mother  of  such  child,  which  w^ould  be  murder  if  it  resulted  in  the  death 
of  such  mother,  shall  be  deemed  manslaughter  in  the  first  degree.^ 

3.   m.\\slalguti:r  in  tiik  skcond  degree. 

^  000.  1.  Every  person  who  shall  administer  to  any  woman, 
pregnant  with  a  quick  child,  or  prescribe  for  any  such  woman, 
or  advise  or  procure  any  such  woman  to  take  any  medicine,  drug  or 
substance  whatever,  or  shall  use  or  employ  any  instrument  or  other 
means  with  intent  thereby  to  destroy  such  child,  unless  the  same  shall 
have  been  necessary  to  preserve  the  life  of  such  mother,  shall,  in  case 
the  death  of  such  child,  or  of  such  mother,  be  thereby  produced,  be 
deemed  guilty  of  manslaughter  in  the  second  degree  •/' 

2.  The  killing  of  a  human  being,  without  the  design  to  eflfect  death,  in 
a  heat  of  passion,  but  in  a  cruel  and  unusual  manner,  unless  it  be  com- 
mitted under  such  circumstances  as  to  constitute  excusable  or  justifia- 
ble homicide,  shall  be  deemed  manslaughter  in  the  sei-nnd  degree  :' 

3.  And  any  person  who  shall  unnecessarily  kill  another,  either  while 
resisting  an  attempt  by  such  other  person  to  commit  any  felony,  or  to 
do  any  other  unlawful  act  ;  or  after  sugh  attempt  shall  have  failed, 
shall  be  deemed  guilty  of  manslaughter  in  the  second  degree.' 

3.  MANSLAUGHTER  IN  THE  THIRD  DEGREE. 

^  901.  Manslaughter  in  the  third  degree,  is, 

1.    The  killing   another  in   the  heat  of  passion,  without   design  to 

1  10  Wend.  509.  <  2  R.  S.  Cr,],  (;7.  7  2  R  S  CCl    (AO 

13     "       159.  Id.. 847,  ()1,  4th  cd.  Id.  848,  (\lb,  4th  e<l 

2  2  R.  S.  6G1,  0,6.  s  2  R.  S.  661,  ^8.  s  2  R.  S.  661  (>11 

Id.  847,  ^6,  4th  cd.  Id.  847,  <)S,  4th  cd.  Id.  848,  u'l.  4th  ed. 

3  19  Wend.  569.  «  2  R.  S.  847,  ^9,  4th  cd. 

Ante,  §897.  Laws  1846,  eh.  22,  ^1. 


356  C'UIMKS  COGNlZAllLi:  IJV  COIK^XKRS. 

ellect  t-leulli,  by  a  daiiirprous  weapuii.  in  any  rjuse  exccjil  such  wherein 
the  kilhiiij'  of  nnuiher  is  hen-iiiarter  dei'larcil  t<»  be  justifiable  or  excu- 
sable :' 

2.  Or  the  iuvuhuitary  kiHuiL;  of  a  human  l»oiiiu',  by  the  act,  procure- 
ment, or  culjiable  neghgenoe  of  another,  while  such  other  pers<»n  is 
engaged  in  the  Commission  of  a  trespass  or  other  ihjury  to  private 
rights  or  projKMty,  or  engaged  in  an  attempt  to  conuiiit  such  injury  ;'^ 
as  where  one,  not  intending  any  injury,  throws  a  stone  at  a  horse,  and 
hits  0  j>erson  and  kills  him  ;  or  throws  a  stone  down  a  coal  pit  in  sport, 
and  it  kills  a  j)erson  :' 

3.  If  the  owner  of  a  mischevious  animal,  knowiiii;  its  proj>ensiiies, 
wilfully  suffer  it  to  go  at  large,  or  shall  keej)  it  without  ordinary  care, 
and  such  animal,  while  so  at  large  or  not  confined,  kill  any  human 
being  who  shall  have  taken  all  the  precautions  which  the  circumstan- 
ces may  permit,  to  avoid  such  animal,  such  owner  shall  be  deemed 
guilty  of  manslaughter  in  the  third  degree  .* 

4.  Any  person  navigating  any  boat  or  vessel  fur  gain,  who  shall 
wilfully  or  negligently  receive  so  many  passengers,  or  such  a  (juantity 
of  other  lading,  that  by  means  thereof  such  boat  or  vessel  shall  sink  or 
overset,  and  thereby  any  human  being  shall  be  drowned  or  otherwise 
killed,  shall  be  deemed  guilty  of  manslaughter  in  the  third  degree  :' 

5.  If  the  captain  or  any  other  person  liaving  charge  of  any  steam- 
boat for  the  conveyance  of  passengers,  or  if  the  engineer  or  other 
|>erson  having  charge  of  the  boiler  of  such  boat,  or  of  any  other  appa- 
ratus for  the  generation  of  steam,  shall,  from  ignorance  or  gross  neglect, 
or  for  the  purpose  of  excelling  any  other  boat  in  speed,  create,  or  allow 
to  be  created,  such  an  undue  (juantity  of  steam  as  to  burst  or  break 
the  boiler  or  other  apparatus  in  which  it  shall  be  generated,  or  any 
af)paratus  or  machinery  connected  therewith,  by  which  bursting  or 
breaking  any  person  shall  be  killed  ;  every  such  ccij)tain,  engineer,  or 
other  person  shall  be  deemed  guilty  of  manslaughter  in  the  thinl 
degree :' 

G.  If  any  physician,  whether  a  regular  physician  or  otherwise,  while 
in  a  sta<e  of  intoxication,  shall,  without  a  design  to  effect  death,  admin- 
ister any  poison,  drug,  or  medicine,  or  ilo  any  other  act  to  another 
person,  which  shall  j>roduce  the  death  of  such  other,  he  shall  be  deemed 
guilty  of  manslaughter  in  the  third  degree  :'' 

1.  If  the  violation  by  any  person  of  the  act  of  the  legislature  rela- 
tive to  the  keeping  of  crunpowder  and  saltj>etre  in  the  city  of  New  York 

«  2  II.  s.  c<r>'2,  <>10. 

M,  MH,  ('^ir,  Jth  cd. 
7  2  H,  H.  (,Q2,  ^17. 

Id.  MH,  ^17,  4lh  cd. 


'  'J  II 

•  -   T 

«  2  11.  S.  002,  ^14. 

Id 

Til  cd. 

Id   MK,  ^^H,   Uhcd.* 

a  2  II 

<>  2  U.  H  002,  615. 
Id.  wy,  ^10,  Ub  cd. 

M 

;  h.d. 

»  Bail    .. 

^.  -'-. 

CRIMKS  COGNIZAIJLl':    BY  CORONERS.  357 

to  the  southward  of  a  hne  running  through  the  center  of  Forty-second 
street,  from  tlie  North  to  the  East  river,  occasions  the  death  of  any  |)er- 
son  or  i)ersuns,  the  ollender  shall,  on  conviction,  be  deemed  guilty  of 
manslaughter  in  the  third  degree.' 

5.    MANSLAUCaiTEE    IN    TIIK    FuUKTU    UEURKE. 

2  902.  1,  Manslaughter  in  the  fourth  degree,  is,  the  involuntary 
killing  of  another,  by  any  weapon,  or  by  means  neither  cruel  nor  unu- 
sual, in  the  heat  of  passion,  in  any  cases  other  than  such  as  are  declared 
by  statute  to  be  excusable  homicide  :* 

2.  Every  other  killing  of  a  human  being,  by  the  act,  procurement 
or  culpable  negligence  of  another,  -where  such  killing  is  not  justifiable 
or  excusable,  or  is  not  declared  by  statute  to  be  murder  or  man- 
slauf;hter  in  some  other  degree.^ 

6.    EXCUSABLE    HOMICIDE. 

^  903.  Homicide  is  excusable  when  committed, 

1.  By  accident  and  misfortune,  in  lawfully  correcting  a  child  or  ser- 
vant ;  or  in  doing  any  other  lawful  act  by  lawful  means,  with  usual 
and  ordinary  caution,  and  without  any  unlawful  intent :  or, 

2.  By  accident  and  misfortune,  in  the  heat  of  passion,  upon  any 
sudden  and  sufficient  provocation,  or  upon  a  sudden  combat,  without 
any  undue  advantage  being  taken,  and  without  any  dangerous  weapon 
being  used,  and  not  done  in  a  cruel  or  unusual  manner.^ 

7.    JUSTIFIABLE    HOMICIDE. 

^  004.  Homicide  is  justifiable  when  committed  by  public  officers 
and  those  acting  by  their  command  in  their  aid  and  assistance,  either, 

1.  In  obedience  to  any  judgment  of  a  competent  court :  or, 

2.  When  necessarily  committed  in  overcoming  actual  resistance  to 
the  execution  of  some  legal  process,  or  to  the  discharge  of  any  other 
legal  duty,  whether  in  a  civil  or  criminal  case  :  or,* 

3.  When  necessarily  committed  yi  retaking  felons  who  have  been 
rescued,  or  who  have  escaped  :  or, 

4.  When  necessarily  committed  in  arresting  felons  fleeing  from 
justice  :®  or, 

*2  R.  S.  852,  ()42,  4th  cd.  3  2  R.  S.  602,  <)10.                   s  Barb.  Cr.  L.  35. 

Laws  1846,  ch.  291,  ^19.  M.  848,  (>19,  4th  ed.            «  2  R.  R.  G60,  ^2. 

8  Post,  ^903.  4  2  R.  S.  601,  ()4.                         Id.  846,  $2,  4th  cd. 

2  R.  S.  662,  <>18.  Id.  847,  ^4,  4th  ed. 

Id,  848,  ^18,  4th  ed. 


358  CRIMES  COcJMZAIJLL:  by  CORONEllS. 

5.  When  rommilted  by  any  person  wlien  rcsistini;  any  attempt  to 
munlor  such  person,  or  lo  conunit  a  felony  upon  him  or  her,  or  upon 
or  in.  any  tlwelHng  house  in  \\  hirh  such  |>crson  shall  be  :  or, 

G.  When  comniitted  in  the  lawful  defence  of  such  person,  or  of  his 
or  her  husband,  wife,  parent,  «hild,  master,  mistress  i>r  servant,  when 
there  shall  be  n  reasonable  ground  to  apprehend  a  design  to  commit  a 
felony,  or  to  do  some  great  personal  injury,  and  there  shall  be 
inuninent  danger  of  such  design  being  accomplislu-d.  Hut  one  will 
nol  be  justified  in  returning  blows  with  a  dangerous  weapon  when  he 
is  struck  with  the  naked  hand,  and  there  is  no  reason  to  a|»prelicnd  a 
design  to  do  him  a  great  b^xiily  harm.  Nor  will  it  justify  homicide 
wiien  the  combat  can  be  avoided,  or  where,  after  it  has  commenced, 
the  jiartycan  withdraw  from  it  in  safety  before  he  kills  his  adversary.' 

7.  Homicide  is  also  justifiable  when  ne<"essarily  committed  in 
attempting,  by  lawful  ways  and  means,  to  apprehend  any  jierson  for 
any  felony  committed  ;  or  in  lawfully  suppressing  any  riot ;  or  in 
lawfully  keeping  or  ])reserving  the  peace.''  But  in  such  case  there 
must  be  an  apparent  necessity  for  killing  ;  fur  if  the  officer  or  private 
person  were  to  kill  after  resistance  had  ceased,  or  if  there  were  no 
reasonable  necessity  for  the  violence  used  on  his  part,  the  killing 
would  be  manslaughter  at  least.  And  if  the  warrant  under  which 
they  act,  is  illegal  and  void  upon  its  face,  or  issued  with  a  blank  in  it, 
whii-h  is  filled  up  after  issued,  or  issued  with  an  insutllcient  description 
of  the  defendant,  the  officer  or  private  jierson  would  not  be  justifiable 
in  killing  the  person  resisting.'  But  it  is  otherwise  if  the  process  is 
only  irregular,  and  it  makes  no  diffi'rence  that  the  charge  in  the 
warrant  is  false  ;  or  the  warrant  obtained  by  imposition  on  the  magis- 
trate by  false  information  as  to  the  matters  contained  in  it.  The 
officer,  too,  must  be  acting  in  his  own  district,  and  not  beyond  the 
jurisdiction  of  the  court  issuing  the  process  ;  and  he  must  sec  that  it  is 
not  executed  on  Sunday,  in  the  cases  where  such  service  is  forbidden 
on  that  day.*  Where  a  jirivate  person  lends  his  aid  to  an  officer,  whether 
commanded  by  him  or  not,  he  is  under  the  same  |)rotection  as  the  offi- 
cer himself.^  An  officer  assaulted  in  llie  discharge  of  his  duty  is  not 
bound,  like  a  private  person,  to  give  way  ;  he  must  ]irocecd  with  his 
duty,  and  if  ht-  necessarily  kills  his  assailant  it  will  be  justifiable,  though 
he  ought  not  to  come  to  extremities  upon  every  slight  interruj)tion  nor 
without  reasonable  necessity.* 

'  2  Com    IM.  i  Harb.  Cr.  L.  86.  s  Wiwh.  Cr.  L.  ;]8. 

»  'Z  K.  H.  000,  (;3.  4  I5.irlj.  Cr.  L.  30.  •  Uarb.  Cr.  L.  »3. 

Id.  b4C,  <^,  4tb  cd. 


CRIMES  COGNIZABLi:  15 V  CORONERS.  359 


8.    VVOUNUIN'G. 

(^  00").  Every  person  who,  from  premedil.itod  design,  evinced  l>y 
layiiij^  in  wait  for  tlie  puri)Ose,  or  in  any  other  manner  ;  or  with  intent 
to  kill  or  commit  any  felony  ;  shall 

1.  Cut  out  or  disable  the  tongue  ;  or, 

2.  Put  out  an  eye  ;  or, 

3.  Slit  the  lip.  or  slit  or  destroy  the  nose  ;  or, 

4.  Cut  oil'  or  disable  any  limb  or  member, 

Of  another,  on  i»uri»ose,  upon  conviction  thereof,  shall  be  imprisoned 
in  a  state  prison,  for  such  term  as  the  court  shall  prescribe,  not  less 
than  seven  years.' 

9.  COXCEALIXG  THE  DEATU  OF  A  BASTARO  CHILD. 

^  900.  Any  woman  who  shall  endeavor  jirivately,  either  by  herself 
or  the  procurement  of  others,  to  conceal  the  death  of  any  issue  of  her 
body,  whirh  if  born  alive  would  by  law  be  a  bastard,  whether  it  was 
born  deail  or  alive,  or  whether  it  was  murdered  or  not,  shall  be 
deemed  guilty  of  a  misdemeanor,  and  shall,  on  conviction  thereof,  be 
punished  by  imprisonment  in  a  county  jail,  not  exceeding  one  year.*^ 

10.    SUICIDE. 

^  907,  Suicide  is  where  one  voluntarily  kills  himself  by  stabbing, 
poison,  or  in  any  other  way.  But  it  is  not  suicide  in  one  who  assists 
another  in  committing  self-murder,  but  manslaughter  in  the  first  degree.^ 

11.    PRIN'CIPALS. 

§  008.  A  principal  in  the  first  degree,  is  the  actor  or  absolute 
perpetrator  of  the  crime.  But  it  is  not  absolutely  necessary  that  he 
should  be  present,  or  do  the  act  himself  For  if  one  lays  poison 
purposely  for  another,  who  takes  it  and  is  killed,  he  who  laid  the 
poison,  though  absent  when  it  was  taken,  is  the  principal  in  the  first 
degree.  Neither  is  it  necessary  that  he  should  perpetrate  the  crime 
■with  his  own  hands ;  for  if  an  oflence  be  committed  through  the 
medium  of  an  innocent  agent,  the  employer  of  the  agent,  though 
absent  when  the  act  is  done,  is  answerable  as  principal  in  the  first 
deforce.  But  if  the  instrument  thus  employed  be  aware  of  the  conse- 
quence of  his  act,  and  responsible  for  it,  he  is  a  principal  in  the  first 
degree  and  the  employer,  if  he  be  present  when  the  act  is  committed, 

1  2  R.  S.  CG4,  <)17.  a  2  R.  S.  876,  ^<>22,  23.  3  Ante,  ^899. 

Id.  850,  <)'ld,  4th  cd.  Laws  1845,  cb.  260,  ^<)4,  5. 


360  CO  RONE  US'  IXQUKSTS. 

is  a  princijial  in  the  scroiul  doi^rec  ;  or  if  absent,  an  acrcssni  v  before 
the  fact.' 

^  000.  A  principal  in  the  seroml  degree  is  one  who  is  i)resenl 
aiding  anil  ahettinix  the  i>orpetrator  of  a  crime.  To  constitute  a  prin- 
rij)al  in  the  second  degree,  he  must  be  present  cither  actually  or 
constructively,  at  tjjo  commission  of  the  crime.  But  it  is  not  ncces- 
sarv  that  he  should  be  an  car  or  eye  witness  of  the  transaction.  He 
is.  ill  c<»ntcm|ilation  <»f  law,  |tresenl,  aiding  and  abetting,  if  with  the 
intention  of  giving  assistance  he  be  near  enough  to  render  it 
should  the  occasion  arise.  But  his  presence  during  the  whole  time  is 
not  necessary.' 

^3  010.  Accessaries  before  the  fact,  are  those  who  being  absent  at 
the  time  of  the  commission  of  the  offence,  yet  procure,  counsel  or 
command  another  to  commit  it.  Absence  is  indispensably  necessary 
to  constitute  one  an  accessary  ;  for  if  he  be  present,  either  actually  or 
constructively,  when  the  felony  is  committed,  he  is  an  aider  and 
abettor,  or  principal  in  the  second  degree,  and  not  an  accessary.^ 

CHAPTER   III. 

CORONERS'  INQUESTS. 

^yOlI.  Whenever  any  coroner  shall  receive  any  notice  that  any 
person  has  been  slain,  or  hns  suddenly  died,  or  has  been  dangerously 
wounded,  or  has  been  found  dead  under  circumstances  as  to  reijuire  an 
inquisition,  it  shall  be  the  duty  of  the  coroner  to  go  to  the  place  where 
such  person  shall  be,  and  forthwith  to  summon  not  less  than  nine,  nor 
more  than  fifteen  persons,  qualified  by  law  to  serve  as  jurors,  and  not 
exempt  from  such  service,  to  appear  before  such  coroner  forthwith,  at 
such  place  as  he  shall  ajipoint,  to  make  inquisition  concerning  such 
death  or  wounding.*  The  place  of  holding  the  inquest  must  be  within 
the  county  where  such  body  was  found,  and  in  which  such  coroner 
resides,  and  may  be  at  any  place  therein;  but  it  should  be  at  a  con- 
venient place  for  such  purpose  nearest  the  body. 

3  012.  There  can  be  but  one  inquest  held  uj)()n  the  same  hotly,  and 
therefore  the  coroner  who  shall  have  first  taken  cognizance  of  the  mat- 
ter, shall  have  exidusive  jurisdiction  therein,  iniless  the  first  iiKjuisition 
Biiall  be  set  a.si<le.  One  iiupiisition  may  be  held  upon  several  dead 
iKxiies  of  persons  who  were  killed  bv  the  same  cause,  and  who  died 
at  the  same  time. 

'  r..nrj).  Ct.  Is.  '2H^.  •  J  U   .s.  '.'-.'., (;1,  -llli  «•(!. 

s  Il.irl..  Cr,  L.  '2H2.  L.ihh  lbi7,  cli.  IIH,  ^L 

»  Uarb.  Cr.  L.  'JUS. 


CORONERS'  INQUESTS.  361 

^  913.  The  coroner  must  suininou  iIk;  jurors  in  |)(;rsou.  h  must  be 
done  personally,  in  the  sanie  manner  as  jurors  are  summoneil  by  a 
sheriir  or  other  ofliccr,  where  the  selection  of  the  jurors  is  discretion- 
ary with  him.  He  should  exercise  the  same  care  in  selecting  the  jurors, 
as  the  olllcer  is  retiuired  to  do  in  the  case  of  jurors  in  a  civil  or  criminal 
l)roceeding  in  courts  of  Law.  Care  should  betaken  not  to  summon  any 
per,spn  relattdv  ,to  the  deceased  ;  and  if  the  person  who  caused  the 
death  or  woun(lrng  is  known,  or  if  any  suspicion  is  entertained  who  he 
is,  po  person  related  to,  or  connected  with  such  person,  should  be  sum- 
moned ;  nor  should  any  one  who  is  known  to  be  prejudiced  for  or 
against  him,  be  summoned  to  act  as  a  juror  upon  the  inquisition.  The 
s^me  care  should  be  observed  in  such  case  to  obtain  a  fair  and  imt»ar- 
tial  ve'i'di(^.t,  as  unbii  ,tlie  trial  of  the  party  accused  of  the  offence.  But 
the  jurors  who  are  selected  and  appear,  are  not  challengeable  by  either 
party.' 

^  914.  The  coroner  has  power  to  issue  subpoenas  for  witnesses, 
returnable  either  fortjiwith,  or  at  such  time  and  place  as  he  shall  appoint 
therein  ;  and  it  shrill  be  the  duty  of  the  coroner  to  cause  some  surgeon 
or  physician  to  be  subpoenaed  to  apj)ear  as  a  witness  ujton  the  taking 
of  such  inquest.*^  ■  SUch  subpoenas  maybe  served  by  the  coroner 
himself,  or  by  any  other  officer  or  person  as  in  other  cases.  The  man- 
ner of  service  of  the  subpoena  is  by  reading  the  same  to  the  wit- 
ness, or  stating  the  contents  thereof  to  him,  as  already  pointed  out.^ 
The  witnesses  are  not  entitled  to  any  fees  for  their  attendance.  Every 
person  served  with  any  such  subpoena  shall  be  liable  to  the  same 
penalties  for  disobedience  thereto,  and  his  attendance  may  be  enforced 
in  the  like  manner  as  upon  a  subpoena  issued  in  justices'  courts.^  The 
manner  of  compelling  the  attendance  of  witnesses  in  such  cases  has 
already  been  pointed  out.^ 

^  915.  Whenever  si.x  or  more  of  the  jurors  shall  appear,  they  shall 
be  sworn  by  the  coroner  and  charged  by  him,®  to  inquire  how  and  in 
what  manner,  attd  when  and  where,  such  person  came  to  his  death,  or 
was  wounded,  (^s'  the  caJie  may  be.)  and  who  such  person  was,  and 
into  all  the  circuiiristances  attending  such  death  or  woundinir ;  and  to 
make  a  true  inquisition,  according  to  the  evidence  offered  to  them 
arising  from  the  inspection  of  the  body.^  In  case  the  body  be  that  of 
a  bastard  child,  it  is  the  duty  of  the  coroner" to  advise  the  jury,  tha-: 
where  there  is  not  the  most  clear  and  decisive  proof  that  the  child  was 

1  2  Hale's  Cr.  L.  59.  <  2  R.  S.  743,  <)i.  7  o  R.  S.  743,  <>2. 

8  2  R.  S.  742,  v>3.                           Id.  'J25,  <)4,  4th  cd.  Id.  025,  (^2,  4th  cd. 

Id.  925,  ^3,  4th  cd.  ^  Ante,  ^191.  Laws  1«47,  ch.  118,  ^7. 

8  Aute,  ^196.  «  2  Ualo  s  Cr.  L.  GO. 


47 


362  roRnxi- RR-  i\orr:s-TS. 

born  alive,  they  oiiqht  not  to  return  a  verdict  of  wilful  murder  against 
the  nunher.' 

<5  t*lfl.  After  the  jury  have  been  tlnis  sworn  and  charged  by  the 
coroner,  they,  with  the  coroner,  go  together  to  view  and  examine  the 
body  of  the  deceased,  or  the  wounded  person.  It  will  not  be  sufti- 
cienl  that  they  view  the  body  separately  and  at  ditlerent  times."  And 
they  cannot  proceed  upon  the  inrpiest  until  they  shall  have  so  viewed 
the  body,  and  if  it  i»e  buried  it  must  be  dug  up.'  It  is  not  necessarv 
that  the  inquest  should  be  held  where  the  l)ody  is  found,  but  after  the 
bo<ly  has  been  so  viewed,  the  jury  may  return  to  some  convenient 
place  to  hear  the  testimony  of  witnesses,  and  deliberate  upon  their  ver- 
dict.* 

^  917.  The  coroner  swears  or  aflirms  the  witnesses  produced  and 
examined  before  the  jury,  and  he  also  examines  them  and  reduces  their 
testimony  to  writing.^  Counsel  may  be  present  and  assist  the  ("oroncr 
in  the  examination  of  the  witnesses;  and  the  jurors  may,  if  they  see 
fit,  put  any  projier  questions  to  the  witnesses.  But  the  party  susj)ected 
or  charged  with  the  crime,  has  no  right  to  produce  witnesses  on  the 
inquest,  or  to  cross-examine  those  produced  on  behalf  of  the  people, 
by  himself  or  counsel.  But  it  will  be  the  duty  of  the  coroner  to  examine 
any  witnesses  he  may  have  reason  to  believe  may  know  anything  con- 
cerning the  matter  pertinent  to  the  inquiry,  and  to  jnit  to  any  witness 
any  jtroper  and  pertinent  question  that  such  party  may  <lesire.  Such 
party,  however,  may  be  attended  by  counsel  on  the  inquest,  to  advise 
with  him  as  to  his  rights  as  to  answering  any  question  that  may  be 
put  to  him  when  under  examination.  If  the  jiarty  accused  of  the 
crim^  be  present  at  the  inquest,  and  is  there  charged  with  the  crime, 
or  the  testimony  fastens  the  crime  ui)on  him,  and  he  is  called  upon  by 
the  coroner  to  testify,  it  is  his  duty  fust  to  inform  the  accused  that  he 
is  at  liberty  to  refuse  to  answer  any  (|uestion  that  he  may  put  to  him, 
otherwise  his  answers  on  such  examination  cannot  be  read  in  evidence 
against  him  when  on  trial  for  the  oflence.  But  if  such  j>erson  is  not 
under  arrest,  or  charged  with  the  crime,  his  answers  may  be  given  in 
evidence  against  him  on  his  subsecpient  trial  for  the  alleged  murder, 
though  the  coroner  may  not  have  so  advised  him,  of  his  rights.*  The 
jury  must  hear  all  the  evidence  otFered  before  them,  whether  it  be 
in  favor  or  against  any  party  susj)eeted  of  the  killing  or  wt)uuding,  for 
the  jury  is  to  find  all  the  circumstances  attending  tiie  killing  or  wound- 
ing.' 

»  Cut.  C.  L,  248.  »  2  II.iI.'h  Cr.  L.  68.  •  Il.-n.U'nionii  Cxw'. 

At.u-,  <>W7.  *  J  ll.iwkiii!.'  P.  C.  78.  '  HaU'»  Cr.  L.  CO,  Ci 

I  1  Chitlv,  74&.  »  2  U   H   7i:i,  ^8. 

Z  Dani.  &.  A.  2G0.  M.  'J'M,  (>«,  4Ui  cd. 


CORONERS'   INQUESTS.  363 

(5  91S.  Upon  the  investigation,  the  coroner's  jury  is  not  limitcfl  in 
their  iiujuiry,  hke  a  jury  upon  the  trial  of  one  charged  with  the  crime. 
Their  duty  is  to  determine  if  a  crime  has,  or  has  not  heen  eommilied, 
and  who  perpetrated  or  who  caused  the  same  to  be  perpetrated,  and  all 
the  circutnstances  attending  it ;  and  any  proper  testimony  tending  in 
any  degree  to  throw  Hght  upon  the  subject  may  be  properly  given.  Stilly 
nothing  l)ut  legal  testimony  shall  be  taken ;  and  mere  matter  of  opin- 
ion, as  to  who  the  oflender  in,  should  not  be  permitted,  nor  should  hear- 
say evidence  be  indulged  in. 

^  919.  The  coroner  may  cause  a  post  mortem  examination  of  the 
body  to  be  maile  by  the  surgeon  or  ])hysician  subprrnaed  before  him, 
if  it  shall  be  necessary,  and  the  expense  thereof  shall  be  a  county 
charge. 

^  920.  The  testimony  of  all  witnesses  examined  before  a  coroner's 
jury,  shall  be  reduced  to  writing  by  the  coroner.  The  whole  of  the 
testimony  should  be  taken  down,  in  due  form,  and  each  examination 
must  have  a  jurat  showing  that  the  witness  was  duly  sworn,  or  aftirmed, 
•by  the  coroner,  or  it  will  not  be  read  in  evidence  upon  the  trial  ;  and 
a  deposition  in  pencil  is  irregular.' 

§  921.  The  jury,  upon  the  inspection  of  the  body  of  the  person  dead 
or  wounded,  and  after  hearing  all  the  testimony  oflered  before  them, 
shall  retire,  as  jurors  in  other  cases,  and  deliberate  upon  their  verdict. 
They  must  not  suffer  any  one,  not  even  the  coroner,  to  mingle  with 
them  in  their  deliberations.  But  they  may,  as  in  the  case  of  jurors 
in  courts  of  law,  take  the  opinion  of  the  coroner  upon  any  question  of 
law  that  may  arise  upon  the  investigation. 

g  922.  When  the  jury  shall  have  agreed  upon  a  verdict,  they  shall 
reduce  their  inquisition  to  writing,  which  shall  show  before  what  coro- 
ner the  same  was  taken,  and  that  the  same  was  taken  upon  the  oath  of 
good  and  lawful  men  of  the  county,  who  were  first  duly  sworn  ;^  and 
it  must  also  show  when  and  where  the  same  was  executed.  They 
shall  also  therein  find  and  certify  how  and  in  what  manner,  and  when 
and  where  the  person  so  dead  or  wounded  came  to  his  death,  or  was 
wounded,  (as  the  case  may  be,)  and  who  such  person  was,  and  all  the 
circumstances  attending  such  death  or  wounding,  and  who  were  guilty 
thereof  either  as  principal  or  accessary,  and  in  what  manner.^  The 
jury  however,  are  not  required  to  find  who  were  accessaries  after  the 
fact,  but  they  need  only  inquire  of  those  before  the  fact.*  If  the  per- 
son who  is  found  dead  or  wounded  is  unknown  ;  or  the  person  who 
caused  the  death  or  wounding  is  unknown,  the  jury  shall  so  find.^  And 

>  22  Wend.  167.  3  2  R.  S.  743,  ()5.  1  2  Hawkins'  P.  C.  76. 

9  2  Hawkins'  P.  C.  77.  Id.  925,  <)5,  4th  cd.  2  H;ilos  Cr.  L.  G3. 

5  2  Hales  Cr.  L.  68. 


MM  CORONKRS-  IN^U'lvSTS. 

they  shall  flnJ,  if  ihc  fart  so  appears  hefoiv  tlietn,  wlietlier  the  kilMiin; 
was  accidental  or  suiridc,  iminier  or  nianslaughter,  or  excusable  or 
justifiable  homicide  ;  and  it"  the  manner  of  the  death  is  nn^uovyn.  they 
shall  si>  state.  Such  uiijuisitiou  shall  then  be  sii^ned  l)y  such  jufors  and 
the  rornner.  if  theitruiies  ol"  the  jurors  are  not  set  out  at  length  in 
the  caption,  they  njiitt  sign  their  names  at  length  and  not  merely  the 
initials  nl  their  ohnstfan  najne.'  If  some  of  the  jarors  si^n  with  their 
mark,  such  signature  should  |>roperly  be  attested,  but  it  will  be  taken 
prima  facie,  that  the  signing  was  in  the  presence  of  each  other." 
\\  here  there  are  two  or  more  on  the  incpiisition  of  the  same  name,  it 
is  not  necessary  to  ifesigTiate  them  by  their  abode  or  additif»n.' 

^  023.  It  is  not  nec^'ssary  that  the  jury  should  bekej)t  together  until 
they  shall  have  agreed  upon  a  verdict,  for  if  there  ai)pears  to  be  an 
irreconcilable  ditVerence  of  opinion  as  to  any  material  fact  amongst 
the  jurors,  cpnceinihg  which- they  are  to  make  inquests,  the  jurors 
agreeing  in  opinion,  may  find,  accordingly,  and  may  j)rescni  two  or 
more  inquisitions.  . 

^  021.  If  the  juryTmd.  that  any  murder,  manslaughter,  or  assault 
has  been  committed,  the  coroner  shall  bind  over  the  witnesses  to 
ajipear  and  testify  at  the>next  criminal  court,  at  which  an  indictment 
for  such  offence  can  be  found,  that  shall  be  held  in  the  county.*  He 
shall,  however,  bind  over  only  those'  witnesses  who  testify  to  some 
material  fact  against  the  accused,  and  not  those  who  are  called  for  the 
purj^ose  <tf  exculpating  him.*  Such  recognizances  shall  be  in  writing 
and  shall  l>e  subscribed  by  the  parties  to  be  bound  thereby.  The 
statute  directing  the  taking  of  such  recognizances  does  not  in  terms, 
empower  the  coroner,  as  in  the  case  of  the  examination  of  a  criminal, 
to  commit  such  witnesses  in  case  of  the  refusal  to  do  so,  and  coroners 
had  no  such  right  at  the  common  law. 

5  925.  The  testimony  of  all  witnesses  examined  before  a  coroner's 
jury,  shall,  as  has  been  seen,  be  reduced  to  writing  by  the  coroner, 
and  shall  be  returned  by  him,  together  with  the  iiiijuisition  of  the  jury, 
and  all  recognizances  and  examinations  taken  by  such  coroner  to  the 
next  criminal  court  of  record  that  shall  be  held  in  the  county.*  In 
j)ractice,  such  testimony,  inquisition  and  recognizances  are  returned 
by  the  coroner  forthwith  to  the  clerk  of  the  county,  and  filed  in  his 
office. 

5  020.  If  there  be  no  friends  of  the  deceased,  to  take  charge  of  the 
l)0<|y,  it  is  the  duty  of  the  coroner,  after  the  same  has  been  duly 
viewe<l  by  him  and  the  jury,  to  see  that  it  is  jJrojK-rly  buried,  and  the 

1  3  r.%r.  A.  I'.  'Vij  >  7  C.ir.  &  V.  r.;J8.  •  0  Cv.  &  1'.  072. 

G        "         ny.  « '2  U   H.  -f.i,  <)(].  •  2  K.  8.  713,  <,n. 

«  2  U-wln,  C.  C.  126.  Id.  'o'ZG,  (,0,  4lh  o<I.  Id.  WO,  v«,  4tb  c<l. 


CORONERS'  INQUESTS.  365 

expense  incurred  thereby  is  a  county  charge.  And  so  it  is  the  duty 
of  the  coroners  of  the  several  counties  in  this  state  to  take  charge  of 
all  moneys  and  other  valuable  things  which  have  been  or  may  here- 
after be  found  with  or  upon  the  bodies  of  persons  on  whom  iiKiuesls 
shall  be  held,  where  there  is  no  other  person  ei^itled  to  take  charge 
of  the  same,  and  every  such  coroner  shall  deliver  over  to  the  treasurer 
of  their  respective  counties  all  such  moneys  and  other  valuable  things 
which  shall  not  have  been  claimed  by  the  legal  representatives  of 
such  person  or  persons  within  sixty  days  after  the  holding  such  inquest ; 
and  in  default  thereof,  the  said  treasurer  shall  be  authorized  and  is 
required  to  institute  the  necessary  proceedings  lo  compel  such 
deliver)'.' 

g  927.  The  several  treasurers  to  whom  any  such  valuable  thing  shall 
be  delivered  as  aforesaid,  shall  as  soon  thereafter  as  may  Jje,  convert  the 
same  into  money,  and  place  the  same  to  the  credit  of  jlhe  county  of 
which  he  is  treasurer;  and  if  demanded  within  six  years  thereafter, 
by  the  legal  representatives  of  the  person  on  whom  the  same  was 
found,  the  said  treasurer,  after  deducting  the  expenses  incurred  by  the 
coroner  and  all  other  expenses  of  the  county  in  relation  to  the  same 
matter,  shall  pay  the  balance  thereof  to  such  legal  representatives.'' 

2  928.  Before  auditing  and  allowing  the  accounts  of  such  coroners, 
the  supervisors  of  the  county  shall  require  from  them,  respectively,  a 
statement  in  writing,  containing  an  inventory  of  all  money  and  other 
valuable  things  found  with  or  upon  all  persons  on  whom  inquests  shall 
have  been  held,  and  the  manner  in  which  the  same  has  been  disposed 
of,  verified  by  the  oath  or  affirmation  of  the  coroner  making  the  same, 
that  such  statement  is,  in  all  respects,  just  and  true,  and  that  the 
money  and  other  articles  mentioned  therein  have  been  delivered  to 
the  treasurer  of  the  county,  or  to  the  legal  representatives  of  such 
person  or  persons.^ 

§  929.  The  said  corpners  shall  be  entitled  to  receive  a  reasonable 
compensation  for  making  and  rendering  such  statement,  and  for  their 
trouble  and  services  in  the  preservation  and  delivery  of  said  effects 
and  property,  and  all  reasonable  expenses  incurred  by  them  in  relation 
thereto,  to  be  audited,  by  the  board  of  supervisors,  in  addition  to  the 
fees  or  compensatioii  to  be  allowed  by  them  for  holding  an  inquest.* 

1  2  R.  S.  926,  (^,10,  4th  dd.       3  2  R.  S.  025,  ('>12.  «  2  R.  S.  920,  (;13,  4th  cd. 

Laws  1842,  ch.  155,  <)l:  Laws  1842,  cb.  155,  ^3.  Laws  1842,  cb.  155,  ^4. 

«2R.  S.  926,  ^ll,4thed. 

Laws  1842,  cb.  155,  ^3. 


3GG        ARIIHST  AND  KXA.MIN A  TloN  OF  OKKKNDERS. 

CHAl'TlJi    IV. 

ARREST  AND  EXAMINATION  OF  OFFENDERS. 

5  030.  If  the  jury  fiiul  that  any  murder,  nianslau^liter,  or  assault 
has  been  coininitlcd,  and  the  party  charged  with  such  otreuce  be  not 
in  custody,  the  coroner  shall  have  power  to  issue  process  for  his  appre- 
hension, in  the  same  manner  as  justices  of  the  })eace,'  and  shall  have 
the  same  power  to  examine  the  defendant  as  is  i>ossessed  by  a  justice 
of  the  peace,  and  shall  in  all  re.-^pects  proceed  in  the  like  manner.' 

5  931.  Such  coroner  shall  issue  a  proper  warrant,  under  his  hand, 
with  or  without  seal,  reciting  the  accusation  in  the  finding  of  the 
jury  upon  the  inquest,  and  directed  to  the  sherilF,  or  to  any  consta!)le 
or  mar.«:hal  of  the  county,  and  commanding  the  ofhcer  to  whom  it 
shall  be  directed,  forthwith  to  take  the  person  accused  of  having  com- 
mitted such  oflence,  and  to  bring  him  before  such  coroner  to  be 
dealt  with  according  to  law.' 

5  932.  The  warrant  of  the  coroner  shall  be  executed  in  the  same 
manner,  and  in  the  same  places  as  criminal  process,  issueil  by  a  justice 
of  the  peace.  And  if  it  is  executed  out  of  the  county  in  which  such 
coroner  resides,  it  would  seem  that  it  should  be  indorsed  by  a  magis- 
trate of  the  county  in  which  the  same  is  executed,  as  the  warrant  of 
of  a  justice  of  the  peace  ;*  though,  as  the  oflence  charged,  wouKl  of 
course  be  felony,  the  jtarty  making  the  arrest  might  justify  such  arrest 
without  warrant.* 

5  933.  When  the  arrest  is  made,  the  prisoner  must  be  brought  forth- 
with before  such  coroner  by  the  olFicer,  for  examination.  If  the  cor- 
oner is  absent,  or  has  gone  outof  oflice,  the  prisoner  should  be  brought 
before  a  magistrate  of  the  county,  and  the  officer  making  the  arrest 
should  make  return  of  such  arrest  uj)on  his  warrant,  and  sh(.»uKl  also 
therein  show  the  absence  of  the  coroner,  or  the  vacancy  in  his  office.* 

3  931.  When  the  prisoner  shall  have  been  brought  before  the  coro- 
ner, he  shall  first  be  informed  of  the  charge  made  against  him, 
and  shall  be  allowed  a  reasonable  time  to  send  for  and  advise  with 
counsel.  If  desired  by  the  person  arrested,  his  counsel  may  be  pres- 
ent during  the  examination  of  the  complainant  and  the  witnes.ses  on 
the  part  of  the  prosecution,  and  during  the  examination  of  the  pris- 
oner.*    And  he  may  have  the  assistance  of  counsel  in  the  examination 

•2  R   H.  743.  <,r,  >  2  R.  H,  70fi,(>3.  •  AnU>,  (J72. 

M   'J'^>.  </),  4iU  Q'l.  M  H'.K),  <^;},  4th  cd.  ^  -  R-  i^  7(W,  C^l  I. 

i  '2  R   H   743,  <;7.  *  AnU-,  </,2.  IJ.  bWl,  ^H,  -itli  ed. 

Id.  i>2C,  ^7,  4Ui  cd.  *  AnU',  ^4U. 


ARREST  AND  EXAMINATION  OF  OFFENDERS.         3G7 

of  his  witnesses.'  If  tlie  ]irisoncr  does  not  admit  the  charge  against 
him,  the  (Coroner  shall  proceed  as  soon  as  may  he,  to  examine  the  com- 
j>Iainant  and  witnesses  produced  in  support  of  the  prosecution,  on  oath, 
in  the  ])resence  of  the  prisoner,  in  re<zard  to  the  oflence  char^'ed,  and 
in  regard  to  any  other  matters  connected  with  such  charge,  wliich 
such  coroner  may  deem  pertinent.' 

g  935.  The  coroner  has  power  to  issue  subpoenas  to  compel  the 
attendance  of  witnesses  upon  the  examination  of  such  prisoner  ;  and 
upon  the  reasonable  request  of  the  prisoner,  the  coroner  must  issue 
similar  process  for  witnesses  on  behalf  of  such  defendant.^ 

^  93(>.  If  there  be  more  than  one  prisoner  charged  with  the  same 
oflence,  they  should  be  kept  separate  and  apart  and  not  permitted  to 
have  any  communication  with  one  another,  oral  or  written,  that 
they  may  be  able  to  concert  a  plan  of  defence.*  The  coroner  may, 
when  necessary,  commit  the  prisoner  for  further  examination,  which 
may  be  verbally  or  by  a  written  warrant.  But  if  it  be  for  a  time 
beyond  a  single  day,  the  better  course  is  by  warrant,  but  which  need 
not  state  the  crime  charged.  And  after  he  has  heard  the  testimony, 
he  has  a  reasonable  time  to  make  his  final  decision,  and  he  may  author- 
ize the  officer  verbally  to  hold  him  until  the  mittimus  is  made  out.* 

<^  937.  The  examination  of  the  complainant  and  witnesses  produced 
in  support  of  the  prosecution,  or  on  behalf  of  the  prisoner,  must  be  in 
the  presence  of  the  prisoner ;  but  the  witnesses  produced  on  the  part 
either  of  the  prisoner  or  of  the  prosecution,  shall  not  be  present  at  the 
examination  of  the  prisoner;  and  while  any  witness  is  under  exami- 
nation, the  magistrate  may  exclude  from  the  place  in  which  such 
examination  is  had,  all  witnesses  who  have  not  been  examined  ;  and 
may  cause  the  witnesses  to  be  kept  separate,  and  prevented  from 
conversing  with  each  other,  until  they  shall  have  been  examined.* 
And  so  all  other  persons,  except  the  prisoner  and  his  counsel,  may  be 
excluded  from  the  room,  if  the  coroner  deems  it  advisable,  during  such 
examination.' 

^  938.  The  examination  of  the  complainant,  if  there  be  one,  is  first 
taken,  and  then  the  witnesses  in  support  of  the  charge.  Such  exam- 
ination is  made  by  the  coroner,  or  he  may  be  assisted  therein  by  the 
district  attorney  or  other  counsel,  on  behalf  of  the  people.  In  such 
examination,  the  coroner  is  not  confined  to  the  oflence  charged,  but 
he  may  examine  in  regard  to  any  other  matters  connected  with  such 

1  2  R  S  008,  <)\7.  *  Barb.  Cr.  L.  552.                   ^  Barb.  Cr.  L.  556. 

Id  8'Jl   ()\~,  4th  cd.  5  Barb.  Cr.  L.  553.                       2  R.  S.  708,  ^^;14,  17. 

t  2  R.  S.  708,  ^13.  6  2  R.  S.  708,  %U,  18.                Id.  891,  ^^14, 17,  4tb  ed. 

Id.  8<J1,  <)U,  4lh  ed.  Id.  891,  ^^13, 18,  4th  ed. 
»  1  R.  S.  94,  14. 

Id.  303,  ^14,  4th  ed. 


368         ARREST  AND  KXAMINATION  OF  OFFENDERS. 

charge,  which  he  may  dceii)  pertinent.'  The  testimony  of  each 
witness,  whether  for  or  ngaiu'jt  the  prisoner,  shall  l)o  reduced  to 
writing  l>y  the  «Mroner.  or  under  his  direction,  in  intelligible  language 
as  near  that  used  hy  the  witness  as  pussiltje.*  An*!  ht-fore  another 
witness  is  examined,  such  testimony  shall  be  read  to  such  witness  and 
when  corrected  conformable  to  what  he  declares  to  be  the  truth  shall 
be  signed  by  such  witness.'  And  the  coroner  should  add  his  jurat 
that  such  witness  was  sworn,  examined,  and  his  testimony  reduced  to 
writing  by  him.  It  will  not  be  suiricient  that  the  witness  is  first 
examined  and  his  statement  reduced  to  writing  and  he  sworn  to  its 
truth*  All  the  testimony  given,  whether  for  or  against  the  prisoner, 
should  be  thus  reduced  to  writing  and  subscribed  by  the  witnesses, 
and  the  coroner  should  omit  no  part  of  a  cross-examination,  because 
in  His  opinion  the  same  has  already  been  answered  in  the  direct 
'  •  «'"*•! ition.  But  if  the  same  question  has  been  put  more  than  once 
xeives  a  uniform  answer,  one  insertion  in  the  dejwsition  will  be 
siiJt^ient.* 

^  930.  After  the  examination  of  all  the  witnesses  in  support  of  the 

'*  charge,  the   coroner  shall  then   proceed  to  examine  the  prisoner  in 

'^         relation  to  the  offence  charged.     Such  examination  shall  not  be  on 

oath  ;  and  before  it  is  commenced,  the  prisoner  shall  be  informed  of 

the  charg'o  'hiade   against  him ;    and    at  the    commencement  of  his 

examinatiWj  the  prisoner  shall   be   informed  by  the   coroner  that  he 

is,«t liberty  to  refuse  to  answer  any  question  that  may  be  put  to  him." 

If  the  prisoner  consents  to  answer  any  interrogatory  his  answers  shall 

be  reduced  to   writiug.^by  the  coroner,  or  under  his  direction;  and 

■     ihey  shall  be  read  to  the  prisoner,  who  shall  correct  or  add  to  them 

and  when  made  conformable  to  what  he  declares  is  the  truth,  shall  be 

.f  vt^    certified  and  signed  by  the  coroner.^  The  prisoner  should  be  requested 

to  sign  such  examination  also,  but  if  he  refuses  to  do  so,  there  is  no 

mode  of  compelling  him  to  do  it. 

5  OlO.  After  the  examination  of  the  prisoner  is  completed,  his 
witnesses,  if  he  have  any^  shall  be  sworn  and  examined,  and  the  testi- 
mony reduced  to  writing  and  signed  by  them,  in  the  same  manner  as 
the  witnesses  on  behalf  of  the  peoi)le  ;  and  the  jjrisoncr  may  have 
the  assistance  of  counsel  in  snich  exr^mination.' 

2>  911.  The  coroner  has  no  jjowe^  whatever  to  jtromise  an  accom- 
plice any  favor  if  he  will  testify  against  the  |)risoner.  And  as  the 
court  may  not  recognize   any  such  engagement,  any  testimony  thus 

I  2  R  8.  708,  <,n.  >  2  R.  8.  709,  ()\0.  '  '2  R.  8.  708,  <,l(\. 

Id  8:»1,  M3,  'tlh  t<l.  M.  H'.t2,  ^10,  llh  i-d.  M.  P'.M,  <)10,  Ith  c<l. 

8  Hill,  'Jh'j.  <:{  Hill.'JH'.t.  8  2  U.  8.  70H,  <;)17. 

•  8  Hill  '2«'J.  B  ,{  iiiii^  :t((r,.  Id.  b'Jl,  ^17,  -llh  c«d. 

8  Wend.  b'JS.  *  '^  H.  S-  7(iH,  </;U,  1&. 

Id.  Wl,(/;li,  10,  4lh  cd. 


ARREST  AND  EXAMINATION  OF  OFFENDERS.         3G9 

obtained  may  be  the  means  of  producing  his  own  conviction.  Such 
coroner  should  therefore  carefully  avoid  holding  out  any  inducements 
to  any  accomplice,  but  allow  them,  like  the  ])risoner  under  examina- 
tion, to  answer  or  not  as  they  may  be  advised.  And  where  one 
proposes  to  make  disclosures,  it  may  not  be  improper  for  the  coroner 
to  inform  him  that  if  he  conducts  fairly  in  every  respect,  and  discloses 
the  whole  truth,  concerning  the  guilt  of  himself  and  his  associates,  his 
punishment  may  be  mitigated,  and  perhaps  he  may  obtain  a  pardon  ; 
but  he  ought  to  inform  him  at  the  same  time,  that  he  has  no  power  or 
right  to  make  any  promise  or  engagement  with  him  to  that  effect,  and 
that  his  confessions,  testimony  and  disclosures,  must  not  only  be 
perfectly  voluntary,  but  that  it  must  be  strictly  true.' 

§  942.  If  upon  the  examination  of  the  whole  matter,  it  shall  appear 
to  the  coroner  either  that  no  offence  has  been  committed  by.  any 
person,  or  that  there  is  no  probable  cause  for  charging  the  -. "'i*! 
therewith,  he  shall  discharge  such  prisoner.' 

§  913.  If  it  shall  appear  to  the  coroner,  upon  the  confession  v.  .i»e 
prisoner,  or  from  the  testimony  taken,  that  an  offence  has  been  com- 
mitted and  that  there  is  probable  cause  to  believe  the  prisoner  to  be 
guilty  thereof,  the  coroner  shall,  by  his  warrant,  commit  such  i)risoner 
to  the  jail  of  the  county.^ 

§  944.  If  it  shall  appear  that  an  offence  has  been  committed  and 
that  there  is  probable  cause  to  believe  the  prisoner  to  be  guilty  thereof, 
the  coroner  shall  bind  by  recognizance  the  prosecutor  and  all  the 
material  witnesses  against  the  prisoner,  to  appear  and  testify  at  the 
next  court  having  cognizance  of  the  offence,  and  in  which  the  prisoner 
may  be  indicted.^ 

^  945.  Whenever  such  coroner  shall  be  satisfied,  by  due  proof,  that 
there  is  good  reason  to  believe  that  any  such  witnesses  will  not  fulfil 
the  conditions  of  such  recognizance,  unless  surety  be  required,  he  may 
order  such  witness  to  enter  into  a  recognizance  with  such  sureties  as 
he  shall  deem  meet,  for  his  appearance  at  such  court.' 

^  940.  Infants  and  married  women,  being  material  witnesses,  may 
in  like  manner  be  required  to  procure  sureties  for  their  appearance  at 
such  court.* 

^  947.  If  any  witness  so  required  to  enter  into  a  recognizance, 
either  without  or  with  sureties,  shall  refuse  to  comply  with  such  order, 
it  shall  be  the  duty  of  such  magistrate  to  commit  him  to  prison,  until 

1  Barb.  Cr.  L.  558.  ■<  2  R.  S.  700,  (/21.  «  2  R.  S.  709,  ()2.3. 

2  2  R.  S.  709,  ^20.  Id.  892,  (^21,  4th  ed.  Id.  892,  ^24,  4th  cd. 

Id.  892,  '^20,  4th  ed.  8  2  R.  S.  709,  f>22. 

3  2  R.  S.  709,  ^21.  Id.  892,  ^23,  4tU  ed. 


Id.  892,  ^<\21,  26,  4th  ed. 
Laws  1830,  ch.  300,  ^61. 


48 


37U  EXRCUTION  oF  PROCHSS, 

he  shall  comply  with  such  order,  or  he  oihcrwisc  discharged,  according 
to  law.' 

^  i)18.  All  such  recognizances  shall  he  in  writing,  and  shall  he 
suhscribcd  hy  the  parties  to  he  hound  thcrchy.'  Infants  and  married 
Women  however,  shouM  not  ho  re(juired  to  sign  such  recognizance, 
hut  only  the  sureties  thereto. 

^  nil).  All  cxaminati<ins  and  recogni/iUKfs  tnkcn  pursuant  to  the 
foregoing  provisions,  shall  he  certified  by  the  coroner  taking  the  same, 
to  the  court  at  which  the  witnesses  are  boun<l  to  ap]icar,  on  the  first 
day  of  the  sitting  thereof.  And  if  any  coroner  shall  refuse  or  neglect 
to  retmn  to  the  proper  court,  any  such  examination  or  recognizance  by 
him  taken,  he  may  lie  compelled  by  rule  of  court,  forthwith  to  return 
the  same,  and  in  case  of  disobetlience  of  such  rule,  may  be  proceeded 
against  by  attachment  as  for  a  contempt  of  court.* 

LllArTEll  V. 

EXECUTION  OF  PROCESS,  WHERE  SHERIFFS  ARE  PARTIES. 

iS  9'jO.  Whenever  the  sheriflT  of  any  county  shall  be  a  party  in  any 
suit,  all  process  in  such  suit,  except  when  otherwise  provided  by  law, 
shall  be  executed  by  the  coroner  of  the  county,  to  whom  the  same 
shall  be  delivered,  in  the  same  manner  in  all  respects,  subject  to  the 
same  obligations  and  liabilities,  and  with  the  like  authority  and  entitled 
to  the  same  privileges,  as  are  prescribed  by  law  in  respect  to  sheriljs, 
except  in  cases,  otherwise  specially  provided  for.*  The  mere  fact 
that  a  dej>uty  of  the  sherifl'  is  a  party  to  a  suit  docs  not  render  the 
sherifl'  a  party  thereto  so  as  to  authorize  or  require  the  service  of  pro- 
cess therein  by  the  coroner.  Nor  does  it  make  any  ditrerence  that  such 
suit  is  against  the  deputy  for  an  oHii-ial  act  or  neglect  of  duty,'  And  a 
coroner  may  serve  process  on  the  sherilF,  when  he  is  a  party  to  a  suit, 
though  such  coroner  is  one  of  iiis  own  deiuilies.'  The  power  of  the 
coroner  to  serve  |)rocess,  being  special,  the  burthen  of  proof  is  on  the 
party  insisting  on  the  regularity  of  his  proceedings,  to  show  that  he 
acted  within  his  authority.' 

^  K.'il.  In  all  raacs  where  a  judgment  shall  be  obtained  in  any  court 
against  the  sheritf  of  any  county,  either  singly  or  with  t»thers,  instead 
of  directing  the  execution  llieicon  to  the  coroner  of  the  county,  it  may 
be  directed  and  delivered  to  anv  i)erson  (except  a  party  in  interest  in 
the  suit)  who  shall  be  designated  by  the  court  in  term,  by  an  order  to 
lie  entered  in  the  minutes,  or  by  any  judge  thereof  in  vacation,  l)y  an 

>  2  H.  ^  •  >  2  U   S.  TO'.i.  %2r>,  27.  »  Auto,  (,'2. 

M    -  i  ed.  M.  H*.i3,  v>2K,2lt,  Itli  cd.      •  7  M.thh.  176. 

«  2  H.  .'*    .  »'     ',-'••  *  -  'I  •'^    J*!.  0**->-  '  I'J  I'lcls-  83»- 

M.  'J-2'J,  v31,  4tli  cd.  M  t.w;,  ,;,ior,  Jih  id. 

Cud«',  v»iy. 


WHERE  SHERIFFS  ARIl  PARTIES.  371 

order  to  be  indorsed  on  such  execution.'  The  person  so  designated, 
and  receiving  such  execution  to  execute  the  same,  shall,  in  respect  to 
such  execution,  he  deemed  a  coroner  of  the  county,  and  shall  he  liable 
in  all  respects  to  all  the  provisions  of  law  i-especting  sherifl's,  so  far  as 
the  same  may  be  apj)licable.' 

^  952.  So,  when  the  sherili'  an<l  coroners  are  parlies  in  the  suitor 
proceeding,  the  court  will,  upon  the  application  of  the  j)arly  requiring 
the  service,  appoint  some  suitable  jierson  called  an  eli/.or,  to  make  the 
service.'  It  is  not  necessary  that  the  eli/or  should  be  a  resident  of  the 
same  county  with  the  ofliccr  upon  whom  he  is  appointed  to  serve  pro- 
cess. Tlius,  a  person  residing  in  Alijany  county,  has  been  appointed  an 
ehzor  to  execute  an  attachment  upon  the  siierill'  of  Niagara  countv.* 

^  953.  When  process  shall  be  directed  to  the  coroners  of  a  county 
generally,  the  same  may  be  executed,  and  a  return  thereto  may  be 
made  and  signed  by  any  one  of  such  coroners  ;  but  such  act  or  return 
shall  in  no  degree  prejudice  the  other  coroners  not  participatinfT 
therein.^ 

^  951.  The  coroner  to  whom  any  such  process  shall  be  delivered  for 
execution,  shall  execute  the  same  in  all  resi)ects  and  be  subject  to  the 
same  obligations  and  liabilities,  and  with  like  authority,  and  be  entitled 
to  the  same  privileges  as  are  prescribed  by  law  in  respect  to  sherifl's, 
except  in  cases  otherwise  expressly  provided  for.' 

§  955.  Whenever  an  action  of  replevin  shall  be  brought  against 
the  sheriff  of  any  county,  the  writ  and  all  process  in  the  cause  shall  be 
awarded  to,  and  be  executed  by  the  coroners  of  the  county,  but  exe- 
cutions therein  shall  be  awarded  and  executed  as  in  other  such  cases/ 
^  956.  If  process  for  arresting  the  sheriff  of  the  county,  be  deliv- 
ered to  a  coroner,  he  sliall  execute  the  same  in  the  same  manner 
prescribed  by  law  in  respect  to  the  execution  of  similar  process  by 
sheriffs  ;  and  shall  be  authorized  to  take  a  bond  on  the  arrest,  or  a 
bond  for  the  jail  liberties  to  himself,  in  the  name  of  his  oflice,  in  the 
same  cases  and  in  the  same  manner,  in  which  a  sheriff  would  be 
authorized  to  take  the  same  ;  which  bonds  would  have  the  like  effect, 
and  be  subject  to  the  same  provisions,  as  bonds  taken  in  like  cases  by 
sheriffs  ;  and  the  proceedings,  rights,  and  liabilities  thereon,  shall  be  the 
same  in  all  respects.^  If  the  sheriff  is  arrested  by  the  coroner,  under 
a  judge's  order  under  the  provisions  of  the  Code,  he  shall  take  an 
undertaking  on  discharging  him  from  arrest,  in  the  cases  where  a  bond 

1  211.  S.  3G4,\)11.  s  2  R.  S.  1-12.  <)85.  '       '  2  R.  S.  653,  <>67. 

Id.  G12,  ^11,  4th  ed.  Id.  GSG.  <>108,  4th  cd.  Id.  70.8,  <\2S,  4th  cd. 

2  2  R.  S.  364,  ^12.  6  2  R.  S.  412,  ^84.  s  2  R.  S.  442.  (>86. 

Id.  G12,  <)12,  4th  cd.  Id.  GSG,  (;107,  4th  cd.  Id.  686,  ^09,  4th  od. 

3  Sewcll,  06.  Code,  ^3419. 
«  23  Wcud.  102. 


372  e.\i:ci:tion  ov  riioci:ss, 

woulil  he  required  umler  the  foregoing  provisions  of  the  statute.'  If 
an  attacluneni  be  issuetl  against  the  slieritV  for  not  returning  an  excou- 
lion,  while  he  is  in  ihc  coroner's  rustotly  hy  virtue  of  an  execution,  he 
should  return  that  fart  to  the  attaclunent,  and  the  court  will  order  an 
alias  attachment  and  a  writ  o\'  Iialieas  corpus,  to  bring  up  the  bo<ly, 
that  he  may  answer  to  the  contempt.' 

;3  H'iT.  If  a  .sherilV.  on  beini^  arrested  by  a  coroner  on  civil  process, 
reijuiring  him  to  be  held  to  bail,  shall  refuse  or  neglect  to  give  the 
bond  or  undertaking  recpiired  by  law,  or  make  the  necessary  deposit,' 
to  entitle  him  to  be  discharged  ;  or  if  a  sherifT  shall  be  arrested  on 
execution  against  his  bodv,  or  <^)n  attachment,  he  shall  be  confuied  by 
the  coroner  in  some  house  situated  within  the  liberties  of  the  jail  of 
the  county,  other  than  the  house  of  such  sherilT,  or  the  jail  of  Huch 
county,  in  the  same  manner  as  sherilVs  are  required  by  law  to  confine 
prisoners  in  jails  of  their  counties  respectively.^  Such  house  shall 
thereupon  become  the  jail  of  the  county,  for  the  use  of  such  coroner, 
and  all  laws  relating  to  the  jails  of  such  counties,  shall  be  applicable  to 
the  same,  while  such  sheriflf  shall  be  confined  therein.^ 

<^  958.  For  any  escape  of  such  sherifl'  from  such  house,  the  coroner 
shall  be  liable,  in  the  same  manner  and  to  the  same  extent,  as  sherills 
for  the  escape  of  the  prisoners,  and  may  plead  and  give  in  evidence 
the  same  matters  allowed  to  sheriffs  in  similar  actions." 

<^  959.  A  sheritr  so  confined  shall  be  admitted  to  the  liberties  of  the 
jail  of  the  county,  established  for  other  prisoners,  in  the  same  cases,  and 
upon  executing  the  like  bond  to  the  coroner  in  whose  custody  he  shall 
be,  as  provided  in  other  cases.  For  any  escape  of  sut-h  sherifl'  from 
such  liberties,  the  coroner  shall  be  liable  in  the  same  manner  and  to 
the  same  extent  as  sherifls  for  similar  escapes,  and  may  i)lead  and  give 
in  evidence  the  same  matters  allowed  l)y  law  to  sherifls.^  And  it  has 
been  held,  that  where  a  coroner  instead  of  confining  such  sherifl*  in  such 
house,  delivered  him  to  the  keeper  of  the  jail  of  the  county,  and  ho 
released  him,  that  such  coroner  was  liable  for  an  escape.' 

5  9(i0.  The  coroner  may  prosecute  any  such  bond  taken  by  him, 
and  shall  be  entitled  and  subject  to  all  the  provisions  of  law,  in  respect 
to  similar  bonds  taken  by  sherifls  ;  and  such  bonds  may  be  assigned  by 
him  to  the  party  at  whose  suit  such  sherifl'  shall  have  been  arrested, 
and  the  same  proceedings  shall  be  had  thereon,  in  all  respects,  as  on 
bonds  taken  or  assigned  by  sherifls  in  similar  cases.' 

1  Anto  (,(,32'^.  Ac.  »  2  R.  8.  412,  ^88.  »  0  Jdin.  22. 

I  ".,  w'.  J..I   fM.  M.  080,  Ull,  4th  cd.  »  2  U.  S.  •U2,  V.d. 

»  Anl*-,  </>a20,  &.C.  •  2  K    H.  ih,  <^H0.  h\.  0.^7,  <)lli,  -Itli  cd. 

4  "  R  8  442,  <>87.  M.  •iHG.^^ll'i,  4lh  cd. 

M.  r-Hf,,  UIO,  4tb  cd.  ■>  2  R.  S.  :\:'.2,  (.W. 

6Johu.  22.  Id.  G«0,(»11^,  4lhcd. 


wnFJUC  sriKRiFFs  Aiii:  PAirriFs.  373 

^  901.  If  any  person  be  anestcil  by  a  (coroner  on  [.locess,  issued  in 
a  suit  in  whicli  the  sheiitr  of  the  county  is  a  plaintitl',  lie  shall  he  com- 
mitted to  the  common  jail  of  the  county,  in  cases  where  a  commitment  is 
required  by  law;  l)ut  such  coroner  shall  not  Ije  liable  for  any  escape 
of  such  prisoner  from  such  jail,  after  he  shall  have  been  committed 
thereto.' 

^  1)02.  Such  prisoner,  who  is  so  committed,  shall  be  kept  in  all  re- 
spects, as  other  prisoners  committed  on  civil  process,  and  shall  be 
entitled  to  be  discharged,  if  he  be  committed  on  mesne  process,  on 
executing  a  bond,  to  the  coroner  in  the  same  manner,  and  in  the  same 
cases,  in  which  such  bond  is  recpiircd  to  be  given  to  a  sherifl',  which 
shall  iiave  the  like  eflect  and  be  proceeded  on  in  the  same  manner,  in 
all  respects.* 

^  903.  Such  prisoner  shall  be  entitled  to  the  liberties  of  the  jail,  in 
the  same  cases  as  other  prisoners,  on  executing  to  the  coroner  a  bond, 
in  all  respects  similar  to  that  required  to  be  given  to  sherills,  which 
shall  have  the  like  ellecl,  and  shall  be  assigned  and  ])roceededon  in  the 
same  manner.'' 

^  904.  For  any  escape  of  such  prisoner  from  such  liberties,  the 
coroner  shall  be  answerable,  in  the  same  manner,  and  to  the  same 
extent  as  sherifl's  for  similar  escapes,  and  may  plead  and  give  in 
evidence  the  same  matters.^ 

^  905.  In  a  case  where  the  coroner  is  required  to  commit  a  pris- 
oner to  the  county  jail,  he  will  have  discharged  his  duty  on  delivering 
or  offering  to  deliver  such  person  to  the  sheriff  of  tlie  county,  at  such 
jail,  with  a  certified  copy  of  his  process  ;  and  if  the  sheriff  or  his 
jailer,  refuses  or  neglects  to  receive  such  prisoner  and  he  remains  at 
large,  it  is  an  escape  for  which  the  sheriff  is  liable.^ 

§  900.  The  case  of  an  arrest  of  the  plaintiff  in  an  action  against 
the  sheriff,  where  there  is  a  judgment  in  favor  of  the  latter  for  costs, 
does  not  seem  to  have  been  provided  for  by  statute.'  At  the  common 
law  the  coroner's  house  is  his  jail,  and  his  prisoners  are  to  be  confined 
therein.  The  party  in  such  case,  therefore,  must  be  committed  to 
such  house,  and  not  to  the  jail,  and  he  cannot  be  permitted  to  be 
discharged  upon  the  liberties  of  the  jail.' 

»  2  R.  S.  443,  (>92.  3  2  R.  8.  443,  (;94.  5  5  Mass.  310. 

Id.  687,  ^115,  4th  ed.  M.  087,  <;117,  4lh  cd.  «  AnU',  ^961. 

«  2  R.  S.  443,  <)93.  <  2  R.  S.  443,  pb.  ^  6  John.  25. 

Id.  687,  ^116,  4th  cd.  Id.  687,  ^118,  4th  ed.  3  R.  S.  748,  2d  ed. 


374  wiii:n  cohonf.us  to  Kxi:cirrK 

ClIArTKU    VI. 
WUEN  CORUNEUS  TO  EXECUTE  THE  OFFICE  OF  SIIEIIIFF. 

^  1X57.  Whenever  a  viicaucy  shall  o«"cur  in  the  ollire  of  sherillof  any 
county,  ami  there  shall  he  no  under  sherilF  of  such  county  then  in 
oflRce,  or  the  otWcc  of  such  uniler  sheritf  shall  l)ecoine  vacant,  or  he 
become  incajiahle  of  executing  the  same,  before  another  sherill'  of 
the  same  county  shall  he  elected,  or  aj)pointed,  and  qualified,  and  there 
shall  l>e  more  than  one  coroner  of  such  county  then  in  tillicc,  it  shall 
be  the  duty  of  the  county  judge  of  the  county,  forthwith  to  designate 
one  of  such  coroners  to  execute  the  ofiice  of  sherill'  of  the  same 
county,  until  a  sherill  thereof  shall  be  elected  or  ajipointed,  and 
qualified.  Such  designation  shall  be  by  instrument  in  writing,  and 
shall  be  signed  by  the  judge,  and  filed  in  the  office  of  the  clerk  of  the 
county,  who  shall  immediately  give  notice  thereof  to  the  coroner.' 

^  908.  The  coroner  so  designated,  within  six  days  after  receiving 
such  notice,  shaJl  execute  with  sureties,  a  joint  and  several  bond  to  tlie 
people  of  this  state,  which  shall  be  in  the  same  amount,  and  with  the 
same  number  of  sureties,  and  be  approved  in  the  same  manner,  and 
be  subject  in  all  respects  to  the  same  regulations,  as  the  security 
required  by  law  from  the  sheriff  of  such  county.  And  after  the 
execution  of  such  bond,  the  coroner  so  designated  shall  execute  the 
office  of  sheriff  of  the  same  county,  until  a  sheriff  shall  be  duly 
elected  or  appointed  and  qualified." 

3  901).  If  the  coroner  so  designated  shall  not  within  the  time  above 
specified,  give  such  security  as  is  above  recjuired,  it  shall  be  the  duty  of 
the  county  judge  to  designate  in  like  manner,  another  coroner  of  the 
county,  to  assume  the  office  of  sheriff;  and  in  case  it  shall  be  necessary 
so  to  do,  the  county  judge  shall  proceed  to  make  successive  designations, 
until  all  the  coroners  of  the  county  shall  have  been  designated  to 
assume  the  office.  And  all  the  provisions  contained  in  the  last  two 
sections  shall  apply  to  every  such  designation,  and  to  the  coroner 
named  therein.' 

3  5)70.  Whenever  any  such  vacancies  shall  occur  in  the  offices  both 
of  sheritf  and  under  sheriff  of  any  county,  if  there  shall  be  but  one 
coroner  of  such  county  then  in  office,  such  coroner  shall  be  entitled 
to  execute  the  office  of  sheriff  of  the  county,  until  a  sheriff  shall  be 
duly  elected  or  appointed,  and  (jualified  ;  but  before  he  enters  ui>on 
the  duties  of  such  office,  and  within  ten  days  after  the  happening  of 
the  vacancy  in  the   office  of  the  under  sheriff,  he  shall  execute  with 

»  1  R.  8.  8«0,^78.  5  1  H.  K.  3Hn,  <uH.  »  1  R.  8.  3ftl.  v^). 

I«L  G'Jtt,  ^>186,  4lb  c<J.  M.  GW,  ^1U6,  lOi  cd.  M-  0'J8,  (>ia7,  4lli  cd. 


TFIF-  OFFrCE  OF  SIIKRIFF.  375 

sureties,  a  joint  and  several  bond  to  the  i)CO|>le  of  iliis  state,  in  tli<r 
same  amount,  and  with  the  same  number  of  sureties,  as  may  be 
re(|uiied  l)y  law  from  the  sherifT  of  such  county ;  and  such  bond  shall 
be  subject  in  all  respects,  to  the  same  regulations  as  the  security 
required  from  the  sherilf.' 

§971.  If  such  coroner  solt-ly  in  ofTicc  on  the  happening  of  such 
vacancies,  shall  neglect  or  refuse  to  execute  such  bond  within  the  time 
above  specified  ;  or  if  all  the  coroners,  where  there  are  more  than 
one  in  office  on  the  happening  of  such  vacancies,  shall  successively 
neglect  or  refuse  to  execute  such  bond  within  the  time  required,  it 
shall  b-  the  duty  of  the  county  judge  of  the  county  in  which  such 
vacancy  shall  exist,  to  appoint  some  suitable  person  to  execute  the 
oflice  of  sherilT  of  the  same  county,  until  a  siieriH' shall  be  duly 
elected  or  appointed  and  qualified.''' 

g;  972.  Such  appointment  shall  be  in  writing,  under  the  hand  and 
seal  of  the  county  judge,  and  shall  be  filed  in  the  office  of  the  county 
clerk,  who  shall  forthwith  trive  notice  thereof  to  the  person  so 
aj^pointed.^ 

^  973.  The  person  so  appointed,  shall,  within  six  days  after  receiving 
notice  of  his  appointment,  and  before  he  enters  on  the  duties  of  the 
oflice,  give  such  security  as  may  be  required  by  law  of  the  sheriff  of 
such  county,  and  subject  to  the  same  regvilations;  and  after  such 
security  shall  have  been  duly  given,  such  person  shall  execute  the 
office  of  sheriff  of  the  county  until  a  sheriff  shall  be  duly  elected  or 
appointed,  and  qualified.* 

§  97-J.  Until  some  coroner  designated,  or  some  person  appointed 
by  the  county  judge  shall  have  executed  the  security  above  pre- 
scribed ;  or  until  a  sheriflT  of  the  county  shall  have  been  duly  elected 
or  appointed,  and  qualified,  the  coroner  or  coroners  of  the  county  in 
which  such  vacancy  shall  exist,  shall  execute  the  office  of  sheriff  of 
the  same  county.* 

g  975.  Whenever  any  under  sherifi;  coroner,  coroners  or  other  per- 
son shall  execute  the  office  of  sheriff,  pursuant  to  either  of  the  foregoing 
provisions,  the  person  so  executing  the  office  shall  be  subject  to  all  the 
duties,  liabilities  and  penalties  imposed  by  law  upon  a  sheriff  duly 
elected  and  qualified.' 

1  1  R.  S.  381,  v31.  3  1  R.  s.  381,  ()S3.  s  i  R.  S.  382^85. 

Id.  898,  <)138, 4tb  ed.              Id.  GltO,  ^^UO,  4tli  cd.  Id.  G99,  ^142,  4th  ed. 

a  1  R.  S.  381,  ()82.  4  i  R.  s.  391,  <j84.  «  1  R.  S.  382,  <^bO 

Id.  698,  $139,  4th  ed.              Id.  699,  <jl4l,  4th  cd.  Id.  699,  <>142,  4th  cL 


THE  DUTIES  OF  CONSTABLES. 


CHAPTER  I. 

OF  TUE  ELECTION' AND  DUTIES  OF  CONSTABLES. 

^976.  There  are  ditVerenl  descriptions  of  constables  known  to  the 
laws  of  this  state  : 

1.  Town  constables,  elected  by  the  several  towns  at  the  town  meet- 
ings held  therein,  annually: 

2.  High  constables,  i)olice  constables,  and  marshals  of  the  several 
cities  and  villages,  elected  or  appointed  under  the  j>rovisions  of  their 
respective  charters. 

g  977.  The  former  class  of  constables,  in  addition  to  being  peace 
officers  of  the  county,  are  the  ministerial  officers  of  the  justices'  courts 
of  the  several  towns  in  the  county,  and  who  are  authorized  and  required 
to  execute  all  process  issuing  from  such  courts  in  civil  cases.  Special 
powers  and  duties  have  also  been  imposed  upon  them  by  statute  in 
other  cases.  Those  not  already  enumerated  in  speaking  of  the  duties  of 
the  sheriffs  and  coroners,  will  be  jx)  in  ted  out  hereafter  under  the  appro- 
priate heads.  Though  elected  in  and  for  the  town  in  which  they 
reside,  their  territorial  jurisdiction  extends  throughout  the  county.' 

^  978.  The  duties  of  the  second  class  of  constables  usually  relate  to 
the  police  of  their  respective  corporations,  and  are  of  a  criminal  char- 
acter ;  though  some  of  them  are  specially  authorized  by  law  to  execute 
civil  process  within  the  limits  of  such  corporations.  In  other  cases, 
their  duties  and  powers  are  made  co-extensive  with  those  of  the  town 
constables.  In  all  these  cases  however,  their  powers,  duties  and  respon- 
sibilities in  the  execution  of  civil  process,  are  the  same,  within  the 
prescribed  limits.  In  general,  they  are  removable  from  office  by  the 
common  council  or  board  of  trustees  of  their  respective  corporations, 
and  vacancies  in  the  office  are  filled  by  such  boards  respectively. 

§  979.  Constables  must  jwssess  the  same  qualifications  as  sher- 
iffs.' In  addition  thereto,  such  constables  must  be  residents  and 
electors  of  the  towns  for  which  they  are  chosen.^     But  a  constable  is 

»  6  Cow.  647.  s  Ante,  ^2.  >  1  R.  S.  345,  ^11. 

1  John.  502.  23  Wend.  602.  Id.  664,  <)31,  4th  ed. 

49 


378     OF  THH  HLECTION  AND  DUTIIIS  (>F  CONSTAJJLES. 

not,  like  the  sherilT.  limited  to  uiie  term  of  oll'ice,  for  he  may  be  chosen 
for  successive  years.  Nor  is  he  jweihihilfd  from  holding  any  other 
office  at  the  same  time. 

;3  5^H0.  There  shall  he  chosen  at  the  annual  t<^\vn  meeting  in  each 
town  in  this  state,  so  many  constables,  not  exceeding  five,'  as  the 
electors  of  such  town  may  determine.*  Such  determination  of  the 
nund)er  must  be  made  by  a  formal  vote  or  resolution  of  the  electors 
of  the  town;*  and  is  usually  made  by  the  adoption,  viva  voce,  of  a 
resolution  to  that  eflert,  before  the  opening  of  the  polls,  by  the  duly 
qualified  electors  of  the  town  then  present.  If  the  number  of  consta- 
bles to  be  chosen  are  not  thus  limited  by  the  formal  vote  of  the  meet- 
ing, the  five  highest  candidates  voted  for  at  such  meeting,  will  be 
deemed  to  be  chosen.^  It  is  not  necessary  however,  that  the  number 
should  be  limited  in  each  year.  The  determination  in  the  manner 
prescribed,  that  a  less  shall  be  chosen,  will  be  a  valid  determination  for 
subsequent  years,  and  until  such  town  shall,  at  a  regular  town  meeting 
determine  otherwise.  When  any  town  meeting  shall  have  limited  the 
number  of  constables,  either  at  said  meeting,  or  at  any  previous  one, 
all  ballots  cast  for  a  greater  number  of  candidates  are  void.*  And  if  the 
town  meeting  determine  that  the  number  of  constables  shall  be  three, 
but  elect  only  two,  the  two  chosen  oust  all  the  constables  of  the  j>re- 
vious  year.*  The  cities  and  larger  villages,  are  usually  authorized  by 
their  charter,  to  choose  a  larger  number  of  constables  than  the  towns. 

5  081.  Constables  hold  their  olHce  for  one  year,  and  until  others  are 
chosen  or  appointed  in  their  places,  and  have  qualified.'  But  the  elec- 
tion of  aless  number  of  constables  at  a  town  meeting,  than  the  town 
is  entitled  to  choose,  will  oust  all  the  constables  in  olUce.*  When  a 
constable  is  appointed  to  fill  a  vacancy  then  existing,  he  holds  until 
another  is  chosen  or  appointed  in  his  place.* 

3  9^2.  If  any  town  shall  neglect  at  its  annual  town  meeting,  to 
choose  all  or  either  of  the  constables  it  may  be  entitled  to  elect,  it 
shall  be  lawful  for  any  three  justices  of  the  peace  of  the  said  town,  by 
warrant  under  their  hands  and  seals,  to  appoint  such  constables ;  and 
the  j)ersons  so  ai)|»ointed  shall  hold  their  respective  oHices  until  others 
are  cho.sen  or  appointed  in  their  plat-es,  and  shall  have  the  same 
powers  and  be  subject  to  the  same  duties  and  penalties,  as  if  they  had 
been  duly  chosen  by  the  electors.'"  fSuch  right  to  apjioint  exists  where 
the  town  fails  to  elect  by  reason  of  a  tie  vote."     The  justices  making 

>  1  R.  8.  340.  <>3.  *  17  Wend.  81.                          «»  I  R.  8.  348,^81. 

111.  046/^3,  4th  ed.  t  1  K.  S.  .'{47,  ^30.                        M.  rJi7,  ^M,  4tb  od. 

«  1  R  H,  HJO,  </*.  I<1.  06(1,  <>63,  4lh  cd.            >'  18  Wend.  616. 

M.  Olf.  <>   ilh  ..'1.                •  Aiit4',  <^'.tm. 

>&  W.-t.'l  »  1  U   H.  347,  <yl\. 

i  tt  W.i.d        ;  Id.  007,  ^M,  4tb  e<l. 
»  b  Wend.  «iM;. 


OF  THE  ELECTION  AND  DIJTIKS  OF  CONSTARf.ES.     379 

such  ap|iointinent,  shall  cause  such  wrirraiit  to  be  forthwiih  (ilcd  in  the 
olhcc  of  the  town  clerk,  who  shall  forthwith  give  notice  to  the  j)erson 
aj»i)ointe(l.' 

^  9H',i,  Vacancies  in  the  olFice  of  constables  by  reason  of  refusal  or 
inability  to  serve,  death,  resignation,  or  removal,  shall  be  supplied  by  the 
justices  of  the  town,  in  the  manner  mentioned  in  the  foregoing  section.' 
Whenever  a  vacancy  shall  so  occur  in  any  such  office,  and  there  shall 
bo  less  than  three  justices  residing  in  the  town  in  which  such  vacancy 
shall  occur,  the  justice  or  justices  residing  in  such  town  may  associate 
with  themselves  one  or  more  justices  of  the  peace  from  any  adjoining 
town,  as  may  be  necessary  to  make  the  number  of  three ;  and  such 
three  justices  shall  have  the  like  power  to  fill  such  vacancy,  as  if  they 
were  respectively  justices  of  the  town  in  which  the  vacancy  occurred.' 

gi  984.  In  the  cities  and  villages  of  this  state,  vacancies  in  the  office 
of  constable,  are  filled  as  in  the  case  of  police  constables  of  such 
cities  or  villages,  by  the  common  council  of  such  city,  or  board  of 
trustees  of  the  village,  except  in  the  city  of  AIl)any,  where,  if  a  va- 
cancy in  suchoflice  exists  for  more  than  two  weeks,  the  justices  of  the 
justice's  court  shall  fill  the  same.* 

^  985.  If  the  name  of  any  constable  chosen  at  an  annual  town 
meeting,  be  on  the  poll  list  as  a  voter,  the  public  reading  of  the  statement 
of  the  result  of  the  election  by  the  town  clerk,  when  the  canvass  shall 
be  completed,  as  required  by  law,  shall  be  deemed  notice  of  the  result 
of  such  election,  to  such  constable.^  But  if  the  name  of  the  person 
so  chosen  be  not  upon  the  poll  list  as  a  voter,  the  clerk  of  the  town 
meeting  within  ten  days  thereafter,  shall  transmit  to  such  person 
a  notice  of  his  election.*  If  such  constable  shall  have  been  ap- 
])ointed  by  the  justices  of  the  peace,  in  the  case  of  a  failure  to  elect, 
or  to  fill  a^acancy  in  the  office,  then  the  town  clerk  shall  upon  the 
filing  with  him  by  the  justices  of  their  warrant  of  such  appointment, 
forthwith  give  notice  to  the  person  appointed.' 

g  986.  Every  person  chosen  or  appointed  to  the  office  of  constable, 
before  he  enters  upon  the  duties  of  his  olTice,  and  within  eight  days 
after  he  shall  be  notified  of  his  election  or  appointment,  shall  take  and 
subscribe  the  oath  of  office  prescribed  by  the  constitution.^  Such  oath 
may  be  subscribed  and  sworn  before  the  town  clerk  of  the  town  in 
which  such  constable  shall  be  elected,  who  shall  administer  and  certify 
the  same  without  fee  or  reward.'     The  oath  may  also  be  administered 

»  1  R.  S.  348,  ^32.  *  Laws  1844,  ch.  347,  ^2.        «  1  R.  S.  346,  $21. 

Id.  657,  ^65,  4th  cd.  s  i  R.  S.  342,  $9.                         Id.  655,  $43,  4th  ed. 

s  1  R.  S.  348,  <j36.  Id.  053,  $20,  4th  ed.             »  1  R.  S.  055,  $36,  4th  ed. 

Id.  657,  $50,  4th  cd.  «  1  R.  S.  342,  $10.                        Laws  1838,  ch.  172,  $1. 

8  1  R.  S.  C57,  $60,  4th  cd.  Id.  653,  $21,  4th  cd. 

Laws  1830,  ch.  320,  $3.  7  l  R.  S.  347,  $32. 

18  Wend.  615.  Id.  667,  $65, 4th  ed. 


3SU    OF  Till-:  ELi:CT10N  AND  DUTIES  OF  CONSTABLES. 

and  certified  by  any  justice  of  the  peace,  or  any  counly  judge,  or  justice 
of  the  supreme  court.  Such  person  so  elected,  within  eight  (hiys  after 
taking  such  oath,  shall  cause  ihe  certificate  thereof  to  be  f\\ed  in  the 
otfire  of  the  town  clerk.'  And  if  any  |>erson  chosen  or  ajipointed  to 
the  olfice  of  constable,  shall  not  tnke  and  8ubscril»e  such  oath,  and 
cause  the  certificate  thereof  lo  be  filed  as  above  re<iuired,8uch  neglect 
shall  be  a  refusal  to  serve."  And  if  any  such  constable  shall  enter 
U{X)n  the  duties  of  his  oflice  before  he  shall  have  token  such  oath,  he 
shall  forfeit  to  the  town  the  sum  of  fifty  dollars.' 

(S  9S7.  The  person  so  chosen  or  appointed  constable,  within  the 
time  j)rescril>cd  for  taking  the  oalh  of  ollice,  shall  also  execute  in  the 
presence  of  the  su|>ervisor  or  town  clerk  of  the  town,  with  one  or 
more  sureties,  lo  be  approved  of  by  such  supervisor  or  town  clerk,  an 
instrument  in  writing,  by  which  such  constable  and  his  sureties,  shall 
jointly  and  severally  agree  to  pay  to  each  and  every  person  who  may 
be  entitled  thereto,  all  such  sums  of  money  as  the  said  constable  may 
be  liable  to  pay,  on  account  of  any  execution  which  shall  be  delivered 
to  him  for  collection.*  The  bond  or  instrument  should  be  general,  and 
should  not  be  given  to  the  people  of  the  stale,  or  of  the  county,  though 
it  will  not  vitiate  it  if  it  be  given  to  the  former.* 

(S  988.  The  supervisor  or  town  clerk  shall  indorse  on  such  in.stru- 
ment,  his  approbation  of  the  sureties  therein  named,  and  shall  then 
cause  the  same  lo  be  filed  in  the  office  of  the  town  clerk,  and  a  copy 
of  such  instrument,  certified  by  the  town  clerk,  shall  be  presumptive 
evidence  in  all  courts,  of  the  execution  thereof  by  such  (nonstable  and 
his  sureties.*  But  neither  the  constable  nor  his  sureties  can  object  that 
the  instrument  was  not  filed  within  the  time  ;  nor  that  the  supervisor  or 
town  clerk's  approval  was  not  indorsed,  nor  that  it  was  not  under  seal.' 

(^  989.  If  any  person  chosen  or  appointed  to  the  office  of  constable, 
shall  not  give  such  security  and  take  such  oalh,  as  is  above 
required,  within  the  time  limited  for  that  purpose,  such  neglect  shall 
be  deemed  a  refusal  to  serve.' 

5  990.  A  constable  may  resign  his  oflice  to  any  three  justices  of  the 
peace  of  the  town,  who  may,  for  sufficient  cause  shown  lo  them,  ac- 
cept the  resignation,  and  whenever  they  shall  accept  any  such  resig- 
nation, they  shall  forthwith  give  notice  thereof  lo  the  town  clerk  of 
the  town.* 

t  1  B.  H.  ^>ir>,  <,\5.  «  1  R.  8.  840,  ^21.  »  12  Wond.  300. 

M  fM,  </."!,  4ih  ed.  Id.  066,  ^43,  4th  cd.  U  John.  401. 

I  1  H   K.  -.M,  '^lO.  »  2  Wind.  2K1.  •  1  H.  »•  3»0,  <;24. 

Id  Gfi.'i,  VW,  Ith  cd.  20  Jclin.  74.                              M.  r,r>r,,U0,  4lh  cd. 

1  R.  H.  3J7,  <>2I.  •  1  It.  H.  3Jf>,  <;.32.  »  1  H.  H.  ZlA,  i,^^. 

Id.  '-'iO,  <y\Cj,  4Ui  id.  Id.  060,  ^14,  4th  cd.               Id.  067,^60,  4th  ed. 

II  U.  H.:U7.  <■/-••• 

Id.  060,  <'>52,4lh  cd. 


OF  THE  ELECTIOiN  AND  DUTIES  OF  CONSTAHLES.       liSl 

^09].  The  oflure  of  constable  shall  become  vnrant  on  the  ha}ti»en- 
ing  of  either  of  the  following  events  before  the  expiration  of  the  term 
of  such  office : 

1.  The  death  of  the  incumbent: 

2.  His  resignation : 

3.  His  removal  from  office  : 

4.  His  ceasing  to  be  an  inhabitant  of  the  town  for  which  he  shall 
have  been  ciiosen,  or  appointed  : 

5.  His  conviction  of  an  infamous  crime,  or  of  any  offence  involving 
a  violation  of  his  oath  of  office  : 

0.  His  refusal  or  neglect  to  take  the  oath  of  office  within  the  time 
required  by  law,  or  to  give  or  renew  any  bond  within  the  time  pre- 
scribed by  law.  But  if  he  enters  upon  the  duties  of  the  olRce  with- 
out having  first  taken  such  oath,  he  will  be  deemed  an  officer  de  facto, 
so  far  as  the  public  are  concerned,  and  such  neglect  cannot  be  taken 
advantage  of  collaterally  ;  but  in  such  case  he  shall  forfeit  to  his  town 
the  sum  of  fifty  dollars.'  The  decision  of  a  competent  tribunal  de- 
claring void  his  election  or  appointment.  But  until  his  election  is  so 
declared  void,  his  acts  are  legal :' 

7.  His  acceptance  of  another  office,  the  duties  of  which  are  incom- 
patible therewith.' 

^  992.  If  any  constable  shall  have  collected  any  money  on  execu- 
tion, and  a  recovery  therefor  shall  have  been  had  against  his  sureties, 
upon  a  complaint  thereof  being  made  to  any  three  justices  of  the  same 
town,  they  shall  summon  such  constable  to  appear  before  them,  to 
show  cause  why  he  should  not  be  removed  from  office.^ 

§  993.  If  such  complaint  be  established  to  the  satisfaction  of  such 
justices,  or  of  any  two  of  them,  after  hearing  of  the  parties,  or  after 
the  refusal  or  neglect  of  the  constable  to  appear  upon  such  summons, 
they  shall,  by  an  instrument  under  their  hands,  remove  such  constable 
from  his  office,  assigning  therein  the  reason  of  such  removal,  and  shall 
file  the  same  in  the  office  of  the  town  clerk,  who  shall  forthwith  cause 
a  certified  copy  thereof  to  be  served  on  such  constable.'  Upon  the 
service  of  a  copy  of  such  instrument,  certified  by  the  town  clerk,  on  the 
constable  named  therein,  such  constable  shall  cease  to  have  any  power 
or  authority  as  such,  and  his  office  shall  be  deemed  vacant.'  In  the 
city  of  Albany,  the  special  constables  may  in  like  manner  be  removed 
by  the  justices  of  the  justice's  court,  of  said  city,  and  they  shall  file  the 
instrument  of  removal  with  the  clerk  of  Albany  county.^ 

>  1  Denio,  674.  2  i  Hill,  G74.  s  o  r    g  072,  ^269. 

4    "       168.  33  Hill,  243.    2  Id.  93.  Id.  458,  <)181t,  4th  ed. 

2  Barb.  320.                              8  Cow.  212.  «  2  R.  S.  278,  ^270. 

]  R.  S.  347,  <')29.  «  2  R.  S.  272,  ^268.  Id.  458,  <>VJO,  4tli  cd. 

Id.  65G,  ^52,  4th  ed.               Id.  468,  ^188,  4th  cd.  '  Laws  1844,  ch.  384,  ^4. 


382      OF  THE  ELECTION  AND  DUTIES  OF  CONSTABLES. 

^  uyi.  The  powers  and  iluiics  of  constables  as  jwace  onioers,  with- 
in the  county,  and  on  the  arrest,  detention,  and  committing  one  charged 
with  crime,  are  the  same  as  in  the  case  of  sheriffs ;  and  u|K)n  a  proper 
warrant,  thoy  can,  hke  shcrifls,  arrest  in  any  part  of  the  state.  In 
many  s|>ecial  proceedings  they  have  concurrent  jurisdiction  with  the 
sherirt';  while  they  alone  can  execute  process  from  justices'  courts,  in 
civil  cases,  except  in  the  cases  where  a  justice  may  depute  another  per- 
son to  j>erform  such  service.  Like  sherills,  they  can  serve  civil  process 
in  any  part  of  the  county,'  and  at  the  same  times,  and  in  the  same  man 
ner.  They  can  also,  like  sheriir*^,  i»ass  through  other  counties  in  conveying 
one  arrested  on  civil  or  criminal  jirocess,  from  the  place  of  arrest  to 
the  place  where  he  is  brought.  Tlie  same  rules  of  law  which  govern 
sheriffs  in  the  execution  of  process  from  the  higher  courts,  govern 
constables  in  the  execution  of  justices'  process,  except  where  some 
statute  intervenes ;'  and  they  have  the  same  power  as  sheriffs  in  call- 
ing out  the  power  of  the  county  to  aid  in  the  execution  of  process  ; 
and  when  property  levied  upon  is  claimed  by  another,  they  may,  like 
the  sheriff,  call  a  jury  to  try  such  claim.  The  powers  and  duties  of 
constables  in  all  such  cases,  will  be  found  pointed  out  in  the  preceding 
part  concerning  the  duties  of  sheriffs  under  their  ajipropriate  heads. 
Where  the  powers  or  duties  of  constables  differ  in  any  respect  from 
those  of  sheriffs,  the  distinction  will  be  pointed  out  in  the  succeeding 
pages. 

5  995.  Every  constable  to  whom  process  shall  be  directed  and  de- 
livered in  a  civil  action  before  a  justice,  shall  execute  the  same  in 
person,  and  shall  not  act  by  deputy  in  any  case.^  But  every  justice 
who  shall  issue  any  process  in  such  case,  excepting  a  venire,  whenever 
he  shall  judge  it  expedient,  on  the  request  of  a  party,  may  by  written 
authority  indorsed  on  such  ])rocess,  enipower  any  proper  person,  being 
of  lawful  age  and  not  a  j)arty  in  interest  in  the  suit,  to  execute  the 
same.*  The  person  so  empowered,  shall  thereupon  possess  all  the 
authority  of  a  constable,  in  relation  to  the  execution  of  such  process, 
and  shall  be  subject  lo  the  same  obligations,  but  shall  not  receive  any 
fee  or  reward  for  his  service  therein.' 

<3  990.  A  constable  who  has  served  either  the  original,  or  the  jury 
process  in  the  cause,  shall  not  appear  as  attorney  and  advocate  for 
either  party  at  the  trial ;  but  he  may  act  as  attorney  in  any  other 
stage  f>r  proceeding  in  the  cause."  He  may  ajtpear  for  the  j>laintiff  on 
the  return  of  the  summons,and  put  in  a  declaration;  and  at  the  reijuest  of 

>  1  John.  602.                            »  2  R.  R.  273,  <fi7^.  »  2  R.  8.  273,  ^v272. 

COow,  M7.                               M   UiH,  <vlM,  lihtd.  l<\.4rtH,(f\'A,4ih  cd. 

»  2  Cow.  421.                            *  2  R.  H.  2<3,  (a271.  •  2  R.  H.  2»3,  <yU 

Id.  4M,  ^191,  4tb  ud.  Id.  434,  ^4:2,  4lb  cd. 


OF  THE  ELECTION  AND  DUTIES  OF  CONSTABLES.      383 

the  party  ho  may  employ  counsel ;'  but  lie  cannot  appear  as  attorney  on 
the  trial  and  prove  the  deniand  declared  on.'  And  where  lie  arrests 
one  on  warrant,  who  authorizes  him  to  aj)pear  and  confess  judj/uient 
for  the  amount,  such  judgment  will  be  utterly  void.* 

,§  907.  No  constable  shall  ask  or  receive  any  money  or  valuable 
thing  from  a  defendant  or  any  other  i)erson,  as  a  consideration,  reward, 
or  inducement  for  omitting  to  arrest  any  defendant,  or  to  carry  him 
before  any  justice  ;  or  for  delaying  to  take  any  party  to  prison,  or  for 
postponing  the  sale  of  any  property,  under  any  execution,  or  for  omit- 
ting or  delaying  the  execution  of  any  duty  pertaining  to  his  office.* 
And  no  constable  shall,  directly  or  indirectly,  buy  or  be  interested  in 
buying  any  bond,  note,  or  other  demand  or  cause  of  action  for  the  pur- 
pose of  commencing  any  suit  thereon  before  a  justice  ;  nor  either  before 
or  after  suit  brought,  lend  or  advance,  or  agree  to  lend  or  advance,  or 
procure  to  be  lent  or  advanced  any  money  or  other  valuable  thing  to  any 
person  in  consideration  of,  or  as  a  reward  for  or  inducement  to  the  plac- 
ing or  having  placed  in  his  hands,  any  debt,  demand  or  cause  of  action 
whatever,  for  prosecution  or  collection.^  Any  constable  ofl'ending 
against  any  of  these  provisions,  shall  be  deemed  guilty  of  a  misdemeanor, 
and  on  conviction  shall  be  subject  to  fine  and  imprisonment,  or  both,  in 
the  discretion  of  the  court,  and  every  such  conviction  shall  operate  as 
a  forfeiture  of  the  ofiice  of  the  constable  so  convicted.* 

^  998.  Any  person  who  shall  knowingly  and  maliciously  cause  or 
procure  any  process  issued  from  a  justice's  court,  in  a  civil  suit,  to  be 
served  on  Saturday,  upon  any  person  whose  religious  faith  and  prac- 
tice is  to  keep  such  day  as  the  Sabbath,  or  who  shall  serve  any  such 
process  which  shall  be  made  returnable  on  said  day,  shall  be  deemed 
guilty  of  a  misdemeanor,  and  upon  conviction  thereof,  shall  be  subject 
to  a  fine,  not  exceeding  one  hundred  dollars,  or  imprisonment,  not  ex- 
ceeding thirty  days,  or  both.  And  any  person  who  shall  procure  any 
such  suit  pending  in  such  court,  against  any  person  of  such  religious 
faith  and  practice,  to  be  adjourned,  to  be  tried  on  Saturday,  shall  be 
deemed  guiltv  of  a  misdemeanor,  and  be   subject  to  like  punishment.'' 

§  999.  All  process  issued  by  a  justice  of  the  peace,  shall  be  signed 
by  him,  and  may  be  with  seal  or  without  seal.'  And  every  summons, 
warrant,  attachment,  and  execution  issued  by  a  justice  of  the  peace, 
shall  be  entirely  filled  up,  and  shall  have  no  blank,  either  in  the  date  or 
otherwise,  at  the  time  of  its  delivery  to  an  officer  to  be  executed,  oth- 

>  9  John.  362.  s  2  R.  S.  267,  ^236.  t  2  R.  S.  84,  ^^70, 71, 4th  ed. 

3  Dcnio  84.  M-  453,  (>15G,  4th  cd.              Laws  1847,  ch.  349,<>>2,3. 

s  11  Wend.  73.  «  2  U.  S.  207,  ^230.  9  2  R.  S.  207,  (;232. 

s  9  Cow.  Gl.  Id.  453,  ^157,  4th  ed.              Id.  453,  ^153,  4th  cd. 
«  2  R.  S.  267,  (>234. 

Id.  453,  ^155,  4th  od. 


384  SERVICE  or  TIIH  SIMMONS. 

erwise  it  shall  be  void.'  And  general  directions  by  a  justice  io  a 
constaMe  to  alter  the  dates  of  executions,  instead  of  renewing  them, 
or  to  fill  up  or  alter  process  is  void." 

5  1000.  A  constable  may  serve  a  sunjmons  in  his  own  favor  and  his 
return  though  false,  cannot  be  impeached  in  the  action.*  lUil  he  can- 
not serve  a  warrant,  attachment  or  execution  in  a  cause  where  he  is 
a  party.*  The  constable  who  has  commenced  the  execution  of  process 
must  finish  it,  as  it  is  an  entire  thing. 

^  1001.  The  same  rules  are  applicable  to  process  in  the  hands  of 
constables,  as  in  the  case  of  sherifl's,  in  resj)ect  to  the  execution  of 
process,  which  is  void  or  voidable.  If  the  process  does  not  re(|uiro 
the  arrest  of  a  party,  or  the  seizure  of  his  goods,  it  will  be  immaterial 
to  the  constal)le  whether  such  process  is  regular  on  its  face  or  voida- 
ble, or  even  void.  He  may  execute  all  such  process  with  impunity  ; 
and  as  a  general  thing  it  will  be  his  duty  to  do  so.  But  if  it  be  an 
attachment  or  execution  against  the  property  of  one  ;  or  if  it  be  a 
warrant  or  execution  against  his  body,  the  constable  should  ascertain 
before  he  proceeds  to  execute  it,  that  it  is  not  void  upon  its  face ;  oth- 
erwise he  may  render  himself  liable  as  a  trespasser.  Thus,  where 
process  in  a  civil  action  is  delivered  to  him  for  execution,  he  should 
see  that  it  is  directed  to  him  by  name,  or  to  the  class  of  officers  to 
which  he  belongs,  as  to  any  constable  of  his  county  ;  and  that  it  con- 
tains no  blank  to  be  filled  up  ;  that  the  justice  issuing  it  resides  in  his 
counlv  ;  and  that  he  has  jurisdiction  of  the  subject  matter  of  the  action, 
and  of  the  person  of  the  defendant,  as  appears  upon  the  face  of  the  pro- 
cess :  or  at  least  that  the  subject  matter  is  within  the  jurisdiction  of  the 
justice,  and  that  nothing  appears  on  the  face  of  the  jirocess  to  show  that 
he  has  not  also  jurisdiction  of  the  person  of  the  defendant.* 

CHAPTER  II. 

SERVICE  OF  THE  SUMMONS. 

^  1002.  The  usual  mode  of  commencing  actions  in  justice's  courts,  is 
by  service  of  a  summons,  of  which  there  are  two  kinds.  The  first  is 
known  as  the  long  summons,  and  must  be  made  returnable  not  less 
than  six  nor  more  than  twelve  days  from  the  date  of  the  same.*  The 
other  is  known  as  the  short  summons,  and  must  be  made  returnable 
not  less  than  two,  nor  more  than  four  days  from  the  date  thereof;^  and 
a  summons  made  returnable  five  days,  or  three  days  from  its  dale,  is 

I  2  R.  .«.  1:07,  </2''.l.  «  1  Cow.  Tr.  230.                      ^  '2  U.  H.  m),  ^'^0,  -lili  cd. 

M   Vy.l,  <>154,  4lh  td.  a  Ante,  %2H1,  &c.                        Laws  1831,  cL.  800,  ^32. 

a  10  John.  406.  •  2  U.  H.  22H,  ^14. 

»  4  J..l,n.  4W}.  Id.  42it,  <>12,  4th  ed. 

3  Wcud.  202. 


SERVFCF,  OF  Till'-  SCMMONS.  385 

neither  a  long  nor  a  short  summons,  an(i  is  void.'  Every  summons 
wliether  it  be  a  lonj;  or  short  summons,  sljall  be  dirccleil  to  any  con- 
stable of  the  county,  where  the  justice  resides,  by  name,  or  generally, 
to  any  constable  of  the  (tounty,  commanding  him  to  summon  the  de- 
fendant to  appear  before  the  justice  who  issued  the  same,  at  the  time 
and  place  named  therein.'^ 

g  1003.  Such  summons  must  be  served  by  the  constable  to  whom 
the  same  is  directed  and  delivered,  if  it  be  the  long  summons,  at  least 
six  days  ;  and  if  it  be  the  short  summons,  at  least  two  days,  before  the 
time  of  appearance  mentioned  therein.^  In  computing  such  time,  the 
day  of  service  is  to  be  excluded,  and  the  day  of  appearance  included. 
The  law  does  not  regard  the  fractions  of  a  day  ;  and  service  in 
the  afternoon  of  the  last  day  on  which  the  service  can  be  made  will 
be  good,  though  the  time  of  a])pearance  is  in  the  morning.'' 

§  1004.  The  manner  of  serving  the  summons  upon  the  defendant, 
where  it  is  a  corporation,  is  the  same  as  in  the  case  of  an  action  com- 
menced by  summons  in  a  court  of  record.®  A  copy  thereof  must  be 
delivered  to  the  president  or  other  head  of  the  corporation,  secretary, 
cashier,  treasurer,  or  director,  or  managing  agent  thereof.*  But  such 
managing  agent  must  l)e  one  whose  agency  extends  to  all  the  transac- 
tions of  the  corporation,  and  not  merely  to  a  particular  branch.^  In  all 
other  cases  the  summons  is  served  by  reading  the  same  to  the  defendant 
and  in  his  hearing,^  unless  he  expressly  waive  it  or  evade  the  hearing, 
by  leaving  the  constable  or  otherwise,  after  he  learns  the  purpose  of  the 
officer.'  If  required  by  the  defendant,  the  constable  must  also  leave 
with  him  a  copy.  If  the  defendant  cannot  be  found,  the  summons 
must  be  served  by  leaving  a  copy  thereof  at  his  last  place  of  abode, 
in  the  presence  of  some  one  of  the  family,  of  suitable  age  and  discre- 
tion, who  shall  be  informed  of  its  contents.'"  The  constable  is  to  find 
the  defendant  if  he  can  do  so,  but  he  is  not  bound  to  look  for  him  at 
any  other  than  his  usual  place  of  residence,  or  last  place  of  abode. 
But  where  he  may  have  been  on  business,  visiting,  or  may  have  stopped 
in  his  travels,  or  the  like,  is  not  such  place."  When  the  service  is  made 
by  leaving  a  copy,  in  the  absence  of  the  defendant,  the  constable 
should  be  sure  that  the  place  where  the  same  is  left  is  the  defendant's 
residence,  or  last  place  of  abode,  and  that  the  person  in  whose  pres- 
ence he  leaves  the  copy,  is  a  member  of  the  family,  and  of  suitable 
age  (fourteen  years)  and  discretion,  and  the  information  of  its  contents 

1  15  Barb.  G60.  s  Code,  $64,  sub.  15.               »  1  Cow.  Tr.  652. 

s  2  R.  S.  228,^14.  6  Code,  ^134.                             i"  2  R.  S.  228,  <jl5. 

Id.  429,  ^12,  4th  cd.  '  5  How.  Pr.  L.  183.                     Id.  430,  ^13,  4th  ed. 

8  2  R.  S.  228,  «i»15.  9  2  R.  S.  228,  ^16.                    n  i  Cow.  Tr.651. 

Id.  430,  ^13,  4th  ed.  Id.  430,  $13,  4th  ed. 
*  1  Cow.  Tr.  651. 

10  Wend.  422. 

50 


38G  SKKVlCr.  OF  ATTACIIMHNTS. 

sliouKl  convey  a  clonr  idea  of  the  name  of  the  niaiiislralo,  the  parlies 
to  the  suit,  and  the  time  and  place  of  ajipcarancc.' 

^  1005.  The  rigliLs  and  liabilities  of  the  constable  in  entering  a 
dwellinj;  to  serve  process,  are  the  same  as  those  of  the  sherilFin  mak- 
ing similar  service.  Aiul  if  the  outer  door  of  the  defendant's  house 
be  shul,  the  olficer  will  be  a  tresj)asser  if  he  enters  without  leave,  to 
serve  the  suinm<^ns.  or  any  other  civil  process."  If  the  defendant  is 
within  his  dwelling,  and  admission  is  refused,  the  constable  sh<^uld 
make  ser\'ice  of  the  sununons  by  reading  the  same  aloud  at  the  door  ; 
or  if  he  is  absent,  by  leaving  a  co|iy  there  with  some  suitable  explana- 
tii»n.  and  any  projier  member  of  the  fan)ily  be  within  hearing.' 

^  loor..  The  constable  serving  the  summons,  shall  return  thereupon, 
in  writing,  the  time  and  the  manner  in  which  he  executed  the  same, 
and  sign  his  name  thereto.*  The  return  must  state  the  time,'  and 
whether  such  service  was  personally,  or  by  copy,  and  tlie  return  must 
1)6  on  the  summons.*  But  the  return  need  not  show  that  the  constable 
read  the  sununons  to  the  defendant ;  or  that  he  read  and  delivered  a 
copy  to  the  defendant,  or  state  with  whom  he  left  the  copy.'  If  the 
defendant  is  found,  it  is  suflicient  to  return  that  the  summons  was  per- 
sonally served  upon  him  ;  or  if  not  found,  that  the  same  was  served  by 
co])y,  he  not  being  found.''  If  there  are  several  defendants,  and  the 
mode  of  service  was  dilVerent  upon  each  or  any  of  them,  it  must 
appear  how  it  was  made  upon  each,  and  if  any  of  them  cannot  be 
found,  or  their  last  place  of  abode  cannot  be  ascertained,  the  return 
should  so  state.'  If  the  service  is  upon  a  corporation,  the  return  should 
state  on  what  otlicer  such  service  was  made.  The  return  of  the  con- 
stable, if  in  proper  form,  will  be  conclusive  in  the  action,  though  false, 
and  will  protect  the  magistrate,  party  and  officer,  who  may  be  instru- 
mental in  enforcing  it.'"  And  this  is  so,  though  the  constable  was  the 
plaintilV  in  the  suit.  But  in  case  of  a  false  return,  such  constable 
would  be  liable  in  another  action  to  the  party  injured." 

CHAPTER   III. 
SERVICE  OF  ATTACnMENTS. 

^  10(>'7.  There  are  also  two  kinds  of  attachments,  by  wliii-h  actions 
are  commenced  in  justice's  courts.  The  one  is  known  as  the  long 
attachment,  and  the  other  as  the  short  attachment.  The  former  is  like 
the  long  summons,  made  returnable  noL^less  than  six,  nor  more  than 

I  1  rv.«   Tr  r>f>2.  6  1  (',,w.  Tr.  652.  »  1  Cow.  Tr.  553. 

«Ar  .^Vc.  2C'.w.  118.     2  Hill,  517.  »  1  Cow.  Tr.  651. 

Ill  I       >  M.  17  W.ii(1.517.   1  Haiidf.  ^2.  '"  1  Cow.  Tr.  566. 

«  2  R.  B.  ii:.*,  <A^  *  -  H.  H  22H,  <)\c,.  n  14  John.  4H1. 

Id.  i:iO,  <>14,  401  cd.  M    J  U».  C,l.»,  Ith  y:d.  3  Wcud.  202. 

'  1  tow.  Tr.  66J. 


SERVICE  OK  ATTACHMENTS.  387 

twelve  days  from  the  date  thereof;'  and  the  latter,  hkc  the  short  sum- 
mons, not  less  than  two,  nor  more  than  four  days  from  liie  date  thereof.' 
Every  such  attachment  shall  state  the  amount  of  the  debt  sworn  to  by 
the  applicant,  and  shall  command  any  constable  of  the  county  in 
which  such  justice  resides,  to  attach  so  much  of  the  goods  and  chat- 
tels of  the  debtor,  as  will  be  suflicient  to  satisfy  such  debt ;  and  safely 
to  keep  the  same,  in  onler  to  satisfy  any  judgment  that  may  be  recov- 
ered on  such  attachment;  and  to  make  return  of  his  proceedings 
thereon,  to  the  justice  who  issued  the  same  at  the  time  therein  spec- 
ified.3 

;3  1008.  The  constable  to  whom  such  attachment  shall  be  dire<:ted 
and  delivered,  shall,  if  it  be  the  long  attachment,  execute  the  same, 
at  least  six  days,  and  if  it  be  the  short  attachment,  at  least  two  days* 
before  the  return  day  therein  mentioned.*  The  mode  of  comjmting  the 
time  of  service,  is  the  same  as  in  the  case  of  the  service  of  a  summons." 
Such  service  is  made  by  the  constable  attaching  and  taking  into  his 
custody  and  safely  keepiuLr,  such  part  of  the  goods  and  chattels  i»f 
the  defendant,  as  shall  not  be  exempt  from  execution,  and  as  shall  be 
sufficient  to  satisfy  the  demand  of  the  plaintiff.  He  shall  immediately 
make  an  inventory  of  the  property  seized,  and  if  the  defendant  can 
be  found  in  the  county,  he  shall  serve  upon  him  personally,  a  coj^v  oi 
the  attachment  and  inventory,'^  certified  by  him.  But  if  the  defend- 
ant cannot  be  found  in  the  county,  then  he  shall  leave  such  copies  so 
certified  by  him  at  the  last  place  of  residence  of  the  defendant ;  but 
if  the  defendant  have  no  place  of  residence  in  the  county  where  the 
goods  and  chattels  were  attached,  such  copy  and  inventory  shall  be 
left  with  the  person  in  whose  possession  the  said  goods  and  chattels 
shall  be  found. ^  If  there  be  two  defendants  the  service  must  be  made 
upon  each  in  the  manner  pointed  out.* 

^  1009.  The  powers,  duties,  and  liabilities  of  the  constable  on  exe- 
cuting an  attachment,  are  the  same  as  on  executing  an  execution,  and 
making  a  levy  thereunder,  on  property.  The  same  goods  and  chat- 
tels may  be  seized  on  the  attachment  as  on  a  justice's  execution,  and 
no  other.  On  attaching  the  goods,  unless  a  bond  is  given  as  hereafter 
mentioned,  the  constable  should,  as  in  the  case  of  a  levy  on  execution, 
take  the  property  into  his  possession  ;  or  take  a  sufficient  receipt 
therefor,  though  he  may,  if  he  chooses,  leave  them  in  the  possession  of 
the  defendant,  or  with  the  party  with  whom  they  were  found.  But  if  he 
leaves  them  with  the  debtor,  whether  he  takes  a  receiptor  for  them  or 

1  2  R.  S.  230,  ^)30.  <  2  R.  S.  230,  (;31.  "  2  R.  S.  4G1,  (J213,  4th  cd. 

Id.  432,  ^)28,  4th  cd.  Id.  432,  (y20,  4th  cd.  Laws  1831,  cli.  330,  <,36. 

2  2  R.  S.  460,  <y2lO,  4th  cd.  5  2  R.  S.  400,  <>210,  4th  cd.  s  2  R.  S.  231,  <)Z\. 
Laws  1S31,  ch.  300,  f>33.  L.-vws  1831,  oh.  300,  ^33.  Id.  432,  (;29,  4th  ed. 

3  2  R.  S.  230,  ^30.  6  ^Viite,  V;1003.  »  3  Dcnio,  318. 

Id.  432,  ^28,  4th  ed. 


3^S  SERVICE  OV  ATTACHMENTS. 

not,  nolhinfT  but  the  net  of  Clod  or  of  the  jiubHc  enemies  will  excuse 
him  if  the  property  is  lost  or  ilestroycil.  If,  however,  he  takes  them 
into  jiis  actual  ;H)ssession  and  uses  due  care,  and  they  arc  lost  or  des- 
troyed without  his  fault  or  nctrlect.  ho  will  not  be  liable.' 

^  1010.  t)ii  the  seizure  of  the  goods,  as  in  the  case  of  a  levy  on 
execution,  they  are  in  the  custody  of  the  law  and  are  not  liable  to  a 
subsequent  seizure  by  another  constable,  or  to  a  levy  by  the  sherift'. 
And  it  makes  no  dilVerenee  that  a  bond  is  uiven  under  the  statute." 
And  such  lien  continues  until  judgment,  and  a  reasonable  time  there- 
after to  make  a  levy  u]'on  the  proj)erty  by  virtue  of  the  exerution.^ 
Hut  if  after  seizure  on  the  attachment,  and  before  a  levy  on  the  execu- 
tion, the  pro|>erty  be  removed  by  the  debtor  beyond  the  jurisdiction  of 
the  justice  who  issued  the  attachment,  the  lien  of  the  first  attachment 
is  gone,  notwithstanding  the  issuing  an  execution  under  such  first 
attachment.  The  constable  holding  such  first  attachment  cannot  main- 
tain an  action  for  such  property.^ 

^  1011.  No  goods  attached  by  any  constable  shall  be  removed  by 
him,  if  a  bond  be  given  and  delivered  to  such  constable,  by  any  i^er- 
son,  with  sufficient  surety,  to  be  approved  by  such  constable,  in  a 
penalty  of  double  the  sum  stated  in  the  attachment,  to  have  been 
sworn  to  by  the  plaintiff;  conditioned  that  such  goods  and  chattels 
shall  be  produced  to  satisfy  any  execution  that  may  be  issued  upon 
any  judgment  which  shall  be  obtained  by  the  plaintiff  upon  such 
attachment  within  six  months  after  the  date  of  such  bond.*  The  giv- 
ing  such  bond  does  not  release  the  lien  of  the  attachment  however, 
but  the  same  continues,  notwithstandinL'.  until  after  the  judgment  is 
obtained  and  a  reasonable  time  thereafter  in  which  to  make  a  levy.* 

^  l(H'.i.  If  any  person  shall  claim  any  goods  or  chattels  attached  by 
the  constable,  he  may  after  such  seizure,  and  at  any  time  before  exe- 
cution shall  have  been  issued  ujjon  the  judgment  obtained  on  such 
attachment,  execute  a  bond  to  the  plaintiff  by  himself  and  with  sure- 
ties to  be  approved  by  the  constable,  or  by  the  justice  who  issued  the 
attachment,  in  a  penalty  double  the  value  of  the  property  attached, 
conditioned  that  in  a  suit  to  be  brought  on  such  bond,  within  three 
months  from  the  date,  such  claimant  will  establish  that  he  was  the 
owner  of  the  goods  seized  at  the  time  of  such  seizure,  and  in  case  of 
his  failure  to  do  so,  that  he  will  pay  the  value  of  the  goods  claimed 
with  interest/ 

•  1  Cow.  Tr.  6C7.  »  20  W.-nd.  238.  •  20  Wend.  2.18. 

Ante,  0*36.  «20W.-n.l.  'IW.  10  John.   121». 

«  10  J<.lin.  120.  »  2  U.  H.  .121,  <yl2.  '  2  R.  H.  2n,  ()3.3. 

20  Wtn.1.  2.18.                           1.1.  432,  </M,  lib  al  Id.  432,  ^31,  4lh  ed. 

AiiU',  V140. 


SERVICE  OF  ATTACHMENTS.  389 

I  ^  1013.  The  first  mentioned  bond  is  to  be  ;,Mven  to  the  ronstnble, 
and  may  be  executed  by  any  person,  with  one  or  more  sureties.  The 
second  mentioned  bond  is  to  the  phiintifl',  and  must  be  exe<-uted  by  the 
claimant  with  sureties.  In  the  first,  one  surety  will  be  snlhcient,  if  he 
is  able  to  respond  ;  while  in  the  second,  two  at  least,  will  be  necessary. 
The  first  bond  must  be  in  the  penalty  of  double  the  sum  sworn  to  by 
the  plaintitV;  and  the  jienalty  of  the  claimant's  bond,  double  the 
value  of  the  property  attached  ;'  which  value  must  be  ascertained 
by  the  constable  by  the  best  judgment  of  competent  persons.'  A 
constable  has  a  discretion  in  respect  to  the  security,  and  if  he  act  in 
good  faith,  will  l)e  prote<'ted,  though  such  surety  should  not  eventually 
prove  good.  When  the  surety  is  a  stranger  to  the  constable,  or  if  he 
is  unacquainted  with  his  circumstances,  or  doubts  his  sufficiency,  he 
should  administer  an  oath  to  the  person  so  oflered.'  And  if  he  does 
this,  and  such  person  i)roves  his  suniciency,  the  officer  cannot  be  held 
liable,  for  he  has  done  all  the  law  required  of  him.*  If  the  second 
bond  is  apjtroved  of  by  the  justice,  as  it  may  be,  the  constable  will 
incur  no  liability,  though  it  should  not  be  good.  The  ai)proval  of  the 
bond  should  be  indorsed  thereon,  and  be  signed  by  the  officer  making 
the  same,  though  the  acceptance  of  such  bond  by  the  constable  with- 
out such  ajiproval  would  perhaps  be  sufficient.  If  however,  the  second 
bond  is  approved  by  the  justice,  the  constable  should  require  that  such 
approval  be  indorsed  thereon  or  he  may  be  held  responsible  for  the 
taking  the  same.  Upon  either  of  the  bonds  aforesaid  being  exe- 
cuted and  delivered  to  the  constable,  he  shall  deliver  up  the  prop- 
erty seized  by  him,  to  the  obligor  in  such  bond.^ 

^  1014.  The  constable  serving  the  attachment  shall  make  return 
thereof,  at  the  day  therein  named  for  that  purpose,  with  all  his  pro- 
ceedings thereon,  in  writing,  subscribed  by  him,  with  a  copy  of  the  inven- 
tory of  the  goods  attached,  certified  by  him,  and  with  any  bond  which 
may  have  been  executed  and  delivered  to  him.*  In  such  return  he  shall 
also  state  specifically  whether  the  copy  of  the  attachment  and  inven- 
tory were  or  were  not  personally  served  upon  the  defendant.^  And 
he  should  state  the  time  when  the  levy  was  made  and  when  the  copy 
was  served.  It  has  been  held  a  good  return  where  it  showed  that  the 
defendant  could  not  be  found  in  the  county,  and  had  no  place  of  resi- 
dence therein,  and  that  the  service  was  made  upon  the  person  with 
whom  the  property  was  found,  though  it  did  not  show  whether  the  serv- 
ice was  made  on  the  defendant  or  not.*     And  a  return  that  an  attach- 

1  1  Cow.  Tr.  569.  *  1  Cow.  Tr.  669.  7  2  R.  S.  401,  <>21.3,4th  cd. 

3  lb.  571.  5  2  R.  S.  231,  ^34.                        Laws  1831,  ch.  300,  ^36. 

3  1  Cow.  Tr.  569.  h\.  432,  ^32,  4lh  ed.                16  John.  12. 

2  R.  S.  552,  ^9.  «  2  R.  S.  232,  ^35.  8  15  Barb.  546. 

Id.  783,  <)d,  4th  ed.  Id.  433,  <>33,  4th  ed. 


390  SKRVICE  1)1'  WARliANTS. 

inent  was  personally  served,  lias  been  lieM  i^ood,  although  it  d\d  not 
show  thai  the  copies  were  certified  by  the  constahlo.'  A  return  of  the 
constable  that  by  virtue  of  an  attachment  against  A.  II.  \w  levied  on 
certain  property,  will  be  intended  to  be  a  return  that  he  levie»l  upon 
the  property  of  the  defendant.'  If  the  attaiduuenl  be  returned  regu- 
larly served,  the  justice  has  jurisdiction,  though  such  return  be  false, 
and  the  jutlgment  will  not  be  annulled  on  that  ground.' 

(HArTKIi   IV. 

SERVICE  OF  WAURAXTS. 

^  1015.  A  warrant  for  the  arrest  of  a  defendant  in  civil  action  in  a 
justices'  court,  shall  be  <lirected  to  any  constable  of  the  county 
where  the  justice  issuing  the  same  resides,  and  shall  commantl  such 
constable  to  take  the  defendant,  and  bring  him  forthwith,  before 
such  justice,  to  answer  to  the  plaintiff  in  a  plea  in  the  same  warrant 
to  be  mentioned  ;  and  shall  farther  require  the  constable,  after  he 
shall  have  been  arrested,  by  the  defendant,  to  notify  the  plaintiff 
of  such  arrest.* 

^  lOlG.  The  persons  who  are  exempt  from  arrest,  in  civil  actions, 
have  already  been  pointed  out ;'  and  the  duties  of  constables  in  the 
execution  of  the  warrant  of  arrest,  in  such  cases,  are  the  same  as 
those  of  sheriffs  under  similar  circumstances.  Though  it  is  i>rovided 
that  wiiere  the  name  of  any  defendant  shall  not  be  known  to  the 
plaintiff,  he  may  be  described  in  the  summons  or  warrant  by  a 
fictitious  name,*  yet  great  caution  must  be  used  bv  the  officer  in 
arresting  the  i>roper  party.  He  must  arrest  the  person  intendetl,  and 
no  other.  Where  the  officer  does  not  know  the  defendant,  he  should 
have  some  one  who  is  familiar  with  liiin,  point  him  out  before  he 
assumes  to  make  the  arrest. 

5  1017.  The  powers,  duties  and  liabilities  of  constables,  in  making 
arrests  under  the  warrant,  are  the  same  as  those  of  sheriffs,  under 
civil  process.  The  lime,  j)laces  and  manner  of  arrest  are  the  same. 
He  may  enter  the  dwelling  house  of  a  defendant  for  thai  iturjiose  in 
the  same  manner  as  sheriffs  may  do ;  and  he  has  also  the  same  right 
to  call  upon  others  to  aid  him,  in  making  the  arrest,  or  in  seizing  or 
retaking  the  prisoner  ;  and  resisters  are  liable  to  the  same  penalties 
for  opjK»sing  the  execution  of  process  in  the  hands  of  constables  as  in 
the  handrt  of  sheriffs  ;  and  they  can  also  retake  a  j)risoner  after  an 
escape  in  the  same  manner  as  sheriffs. 

>  11  Tinth.  628.  «  'J  II.  S.  220/>20.  •  2  R.  8.  274,  6282. 

«  2<»  W.ikI.  146.  M.  |.!(i,  (';1H,  Jth  c<l.  M.  -160,  V-02,4tb  cd. 

»  7  Wctjd.  3WJ.  •  AiiU',  <//^W,  &€. 


SERVICE  OF  WARRANTS.  391 

^  lOlS.  A  warrant  .shall  be  served,  by  arresting  the  defendant  and 
taking  liini  f'ortliwith  before  the  justice  issuing  the  sntne.  Tlie 
constable  cannot,  on  making  the  arrest,  take  security  from  the  defend- 
ant for  his  appearance,  but  he  must  actually  bring  him  before  the 
court;'  and  if  he  do  not,  though  the  return  be  regular  upon  its  face, 
that  the  defendant  is  in  cu.stody,  and  it  be  made  with  the  defendant's 
assent,  a  judgment  rendered  thereon  will  be  void.'  But  the  con- 
stai)le  may  allow  the  prisoner  to  go  at  large,  if  he  have  him  when 
recpiirt'd.  Yet  if  in  such  case,  he  is  in  the  me.nn  tiirie  arrested  by 
another  ofllccr  on  a  criminal  charge,  so  that  the  constable  cannot 
have  him  on  the  return  of  the  warrant,  it  will  be  deemed  a  voluntary 
escape  for  which  he  will  be  liable.^ 

^1019.  If  it  be  necessary,  after  the  constable  has  arrested  the 
defendant,  he  may  confine  him  in  his  house  or  other  place  of  security, 
or  place  him  in  the  jail,  with  the  sheritT's  leave,  for  safe  keej)ing,  or 
while  he  looks  for  assistance,  or  during  the  night,  if  the  arrest  is  so 
late  that  he  cannot  get  to  (he  justice's  office  before  sundown  ;  but  in 
general  he  is  to  obey  the  warrant  and  take  the  prisoner  forthwith  on 
his  arrest,  by  the  nearest  and  most  direct  route  and  in  the  most 
convenient  time  to  the  justice  who  issued  the  warrant ;  and  if  he  be 
absent,  or  unable  to  act,  to  the  next  justice  of  the  city  or  town,  who 
shall  take  cognizance  of  the  cause  and  proceed  thereon,  as  if  the 
warrant  had  been  issued  by  him.^ 

§  1020.  When  the  constable  has  arrested  the  defendant,  he  shall, 
according  to  the  direction  of  the  warrant,  notify  the  plaintiff  of  the 
arrest  ;^  which  notification  may  be  by  parol,  or  by  written  notice,  or 
by  a  messenger  or  otherwise.® 

g  1021.  Every  constable  serving  a  warrant,  shall  return  thereupon, 
in  writing,  the  manner  in  which  he  executed  the  same,  and  the  fact 
whether  he  has  or  has  not  notified  the  plaintitf.^  When,  for  any  reason, 
the  justice  who  issued  the  warrant  shall  be  unable  to  hear  or  try  the 
cause,  and  the  defendant  shall  be  taken  before  another  justice,  the  con- 
stable's return  to  such  process,  shall  siiow  the  absence  or  inability  of 
the  justice  to  hear  or  try  such  cause. 

g  1022.  When  the  defendant  shall  be  brought  before  a  justice  on  a 
warrant,  he  shall  be  detained  in  the  custody  of  the  constable  until  the 
justice  shall  direct  his  release.  But  in  no  case  shall  the  defendant  be  de- 
tained longer  than  twelve  hours  from  the  time  he  shall  be  brought  before 
the  justice,  unless  within  that  time,  the  trial  of  the  cause  shall  be  com- 

1  5  Wend  61.  *  1  Cow.  Tr.  565.  6  1  Cow.  Tr.  557. 

2  1  Cow.  Tr.  556.  2  R.  S.  229,  ^21.  7  2  R.  S.  229,  ^22. 

3  6  John.  G2,  Id.  430,  ^19,  4th  ed.  Id.  431,  ^20,  4lh  cd. 

10  Weud.  514.  s  Ante,  <;1015. 


392  VENIRE  AND  TRIAL. 

inencetl ;  or  unless  it  shall  Itc  clclaycti  al  ilio  instance  of  the  defendant,'  in 
which  case  he  shall  remain  in  the  hands  nf  the  c^nstahle,  unless  he  ijive  a 
bond'  to  the  plaintiffrequired  l»y  the  stalute.and  approved  by  the  justice.' 
If  the  cause  be  adjourne«l  on  the  consent  of  both  jiarties,  or  upon  the  aj)- 
plication  of  the  i)laintil]'.  the  defendant  shall  be  discharged  from  custody.* 
The  time  necessary  lo  find  a  justice  to  try  the  defendant,  is  not  to  be 
considered  as  part  of  the  twelve  hours.  If  however,  he  shall  be  de- 
tained an  unreasonable  lime  before  he  is  carried  to  the  justice,  or  shall 
be  kept  more  than  twelve  hours  after  being  brought  to  the  justice,  and 
before  the  trial  is  commenced,  the  constable  and  all  parlies  will  be 
deemed  trespassers.* 

CHArTER  V. 

VENIRE  AND  TRIAL. 

■  ;3  1023.  Upon  the  demand  of  a  trial  by  jury,  the  justice  shall  issue  a 
venire  directed  lo  any  constable  within  the  county,  wherein  the  cause 
is  lo  be  tried,  commanding  him  lo  summon  twelve  good  and  lawful 
men,  in  the  town  where  such  justice  resides,  qualified  to  serve  as 
jurors,  and  not  exempt  from  serving  on  juries  in  courts  of  record,  who 
shall  be  of  no  wise  akin  lo  the  plaintitV  or  defendant,  nor  interested  in 
such  suit,  to  appear  before  such  justice,  at  a  time  and  place  named 
therein,  to  make  a  jury  for  the  trial  of  the  action  between  the  parties 
named  in  such  venire.* 

'^  10'.21.  The  justice  issuing  the  venire,  shall  deliver,  or  cause  the 
same  lo  be  delivered,  lo  some  constable  of  the  county,  disinterested 
between  the  parlies,  and  against  whom  no  reasonable  objection  shall 
have  been  made  by  either  party. ^  What  is  a  reasonable  objection, 
must  in  a  great  manner  be  left  lo  the  discretion  of  the  justice.  But  no 
one  should  be  selected  to  execute  the  venire,  if  the  return  made  by 
him  would  be  set  aside  upon  a  challenge  to  the  array;  or  if  there  exists 
a  settled  hostility  between  the  constable  and  the  party  objecting ;  or 
if  he  is  upon  terms  of  peculiar  intimacy  and  friendship  with  the  oppo- 
site i»arty,  so  much  as  lo  lead  the  justice  lo  suspect  his  integrity,  or 
that  his  feelings  may  be  interested  in  behalf  of  the  party."  And  no 
constable  who  shall  hare  been  employed  to  act,  or  who  shall  have  acted 
as  altf'rney  or  agent  in  respect  to  any  claim  or  matter  in  controversy, 

I  2R.  S.  2r.t.  (/2I).  *  2  R.  H.  239,  <^1C,.                   ^  2  R.  S.  212,  ^;97. 

M.  l'!!,  </z:i,  lUi  cl.  M.  4:}H,  (/12,  4th  vol.               M.  441,  <>hH,  4Uic«l. 

10  Wi-i.<l.  611  »  1  Cow.  Tr.  658.                       "  2  Cow.  Tr.  330. 

I  2  K  H  2r.t,  (,71.  10  W.iiil.  515. 

M.  4.">,  <fA,  4th cl.  •  2  U.  S.  242,  <>U4. 

»  2  R.  H.  23tt,  <>70.  M.  441,  <>84,  4th  cd. 

Id.  43H,  ^06,  4lh  eJ.  Aulc,  ^^171,  itc. 


VENIRE  AND  TRIAL.  39S 

sliall  summon  any  jury  in  ;i  justice's   court,  which  slinll   he  summoned 
to  try  any  question  in  relation  to  any  such  claim  or  matter.' 

^  lOiif).  The  constahle  to  whom  any  venire  shall  be  delivered,  shall 
execute  the  same  fairly  and  impartially,  and  shall  not  summrjii  any 
person  akin  to  either  of  the  parties,  or  any  person  whom  he  lias  rea- 
son to  believe  biassed  or  prejudiced  for  or  against  either  of  the  parties. 
He  shall  summon  the  jurors  personally,  and  shall  make  a  list  of  the 
persons  summoned,  which  he  shall  certify  and  annex  to  the  venire  and 
return  to  the  justice.*  The  persons  qualified  to  act  as  jurors,  and  who 
are  exempt,  and  who  will  be  excused,  have  already  been  pointed  out.^ 
The  venire  may  be  executed  either  by  reading  the  same  to  the  juror, 
or  by  personally  stating  to  him  its  contents.  The  jurors  cannot  be 
summoned  by  leaving  a  notice  at  their  places  of  residence,  as  in  the 
case  of  jurors  drawn  for  a  term  of  a  court  of  record, 

^  lOviC).  At  the  trial  of  the  cause,  the  names  of  the  persons  so 
returned,  and  who  shall  appear,  shall  be  respectively  written  on  several 
and  distinct  pieces  of  paper,  as  nearly  of  one  size  as  may  be  ;  and  the 
constable  in  the  presence  of  the  justice,  shall  roll  up  or  fold  such  [ueces  of 
paper  as  nearly  as  may  be  in  the  same  manner,  and  put  them  together 
in  a  box  or  some  convenient  thing,  to  be  drawn  by  the  justice.^ 

^  1027.  If  a  sullicient  number  of  competent  jurors  shall  not  be 
drawn,  the  justice  may  supply  the  deficiency  by  directing  the  consta- 
ble to  summon  any  of  the  by-standers  or  others  who  may  be  competent 
and  against  whom  no  cause  of  challenge  shall  appear,  to  act  as  jurors 
in  the  cause.' 

^  1028.  If  the  constable  to  whom  the  venire  shall  have  been  deliv- 
ered, do  not  return  the  same  as  thereby  required,  or  if  a  full  jury  shall 
not  be  obtained,  upon  drawing  the  names,  or  from  the  by-standers,  the 
justice  shall  issue  a  new  venire.®  The  justice  shall  deliver  such  new 
venire  to  a  proper  constable  for  execution,  as  in  the  case  of  the  first 
venire,  who  shall  execute  and  return  the  same  in  the  same  manner  in 
all  respects  as  in  the  case  of  the  first  venire. 

^  1029.  After  hearing  the  proofs  and  allegations,  the  jury  shall 
be  kei)t  together  in  some  convenient  place,  under  the  charge  of  a  con- 
stable, until  they  agree  upon  their  verdict ;  and  for  that  purpose  the 
justice  shall  administer  to  such  constable,  the  following  oath  :  "  You 
do  swear  in  the  presence  of  Almighty  God,  that  you  will  to  the  utmost 
of  your  ability,  keep  the  persons  sworn  as  jurors  on  this  trial,  together 
in  some  private  and  convenient  place,  without  any  meat  or  drink, 
except  such  as  shall  be  ordered  by  me ;  that  you  will  not  sutler  any  com- 

1  2  R.  S.  441,  <)8o,  4th  cd.  3  Ante,  y>171,  &c.  s  2  R.  S.  243,<;101. 

Laws  1847,  ch.  470,  ^.  *  2  R.  S.  243,  p9.  Id.  442,  <;02,  4th  cd. 

8  2  R.  S.  243,  pS.  Id.  441,  <i90,  4th  ed.  6  o  R.  S.  243,  (>102. 

Id.  441,  ^89,  4th  ed.  Id.  442,  ^93,  4th  ed. 

51 


3Ul  JISTICHS'  EXKCUTIOXS. 

inunicntion  orally  or  otherwise  (•)  lie  niaile  to  tlicm  ;  that  you  will  not 
communicate  with  thoin  yourself,  orally  or  otherwise,  unless  by  my 
order,  or  to  ask  thenj  whether  they  have  agreed  ujion  tlieir  verdict, 
until  they  shall  he  discharijetl ;  and  that  you  w  ill  not,  before  U>ey  render 
their  verdict,  communi<*ate  t<»  any  person  the  slate  of  their  delibera- 
tions, or  the  verdict  they  have  agreed  on."'  The  administering  an 
erroneous  oath  to  the  ('(instable,  is  fatal  to  the  judgment.*  And  if  the 
|)erson  sworn  is  not  a  constable  it  is  error.'  If  the  jury  do  not  retire  ; 
that  is  if  Ihey  find  a  verdict  on  the  spot,  a  constable  need  not  be 
sworn.*  But  if  they  retire,  or  the  justice  leaves  them  in  ins  room 
together  to  make  up  the  verdict,  a  constable  must  be  sworn.' 

CIIAP'IKK   VI. 

JUSTICES'  EXECUTIONS. 

<S  1030.  An  execution  on  a  judgment  rendered  by  a  justice,  may  be 
issued  by  the  justice  at  any  time  within  five  years  from  the  rendition 
thereof;*  and  any  justice  before  whom  any  judgment  shall  have  been 
entered,  and  whose  term  of  office  shall  have  expired,  may  issue  or 
renew  executions  on  any  such  judgments,  after  the  expiration  of  his 
said  otlice,  at  any  time  within  two  years  from  the  time  said  judgment 
shall  have  been  rendered.^ 

^  1031.  The  execution  shall  be  directed  to  any  constable  within  the 
same  county,  and  shall  cc»mmand  him  to  levy  the  del>t  or  damages, 
and  costs,  of  the  goods  and  chattels  of  the  person  against  whom  the 
same  shall  be  issued,  (excepting  such  goods  and  chattels  as  are  exempt 
by  law  from  execution,)  and  to  bring  the  money,  at  a  certain  time  and 
place  therein  to  be  mentioned,  before  such  justice,  to  render  to  the 
party  who  recovered  the  same  ;  and  if  the  execution  be  issued  against 
a  male  person,  it  may,  in  a  proper  case,  couunand  the  constable,  that 
if  no  goods  or  chattels  can  be  found,  or  not  sufficient  to  satisfy  such  exe- 
cution, to  take  the  i^ody  of  the  |)erson  against  whom  the  execution  shall 
be  issued,  and  convey  him  to  the  common  jail  of  the  county,  there  to 
remain  until  such  execution  shall  be  satisfied  and  paid."  But  no  female 
shall  be  arrested  or  im|)risoned,  upon  any  execution  issued  from  a  jus- 
lice's  court.*  It  is  declared,  as  has  been  seen,  that  every  execution  issued 
by  n  justice  of  the  peace,  shall  be  entirely  filled  uj),  and  shall  have  no 
blank  either  in  the  date  or  otherwise,  at  the  time  of  its  delivery  to  an 

•  2  R.  H.  244.  (^VfJ.  *  8  John.  487.  «  2R.  H.  240,  ijiai. 

M.  442,  U«Ki,  4Ui  f  1.  11  H.irb.  881.  M  440,  ^120, 4lh  cd. 

»  2  CftlricB,  134.  »  14  IJarl).  :!H1.  8  Wnid.  4n:i. 

3      "       140.  •  <„,|,.,</,.|,  Mil).  12.  12     "       145. 

»  2  Cow.  Tr.  SM  -  2  11   8.  44r,,  MH»,  4th  cd.  •  2  R.  H  2A.t,  <,ir,H. 

11  John.  442,  632.  L.-iwn  lb40,  ch.  270,^1.  M.  il'J,  <,H\,  4th  cd. 


JUSTICES'  EXECUTIONS.  395 

officer  to  be  executed.  Kv(M-y  such  process.  \vlii<li  shrill  he  issufd  and 
dchvcred  to  an  onicer  to  1)C  executed,  contrary  to  the  {'nv^j^n'm^  i)ro- 
rision  shall  be  void.'  And  the  process  cannot  be  amended  by  the 
justice  after  it  has  been  executed,  nor  after  a  levy  ;»  and  a  ^tneral 
authority  to  a  constable  to  alter  an  execution  or  other  process,  «n-  to 
fill  ui)  blanks  is  void.'  Every  execution  issued  by  a  justice,  shall  be 
dated  on  the  day  when  it  actually  issued,  and  shall  be  returnable  sixty 
days  from  the  dale  of  the  same.*  If  it  is  made  returnable  at  a  longer  or 
a  shorter  period,  it  will  be  void,  and  the  constable  to  whom  it  is  deliv- 
ered, should  not  exe<-ute  the  same,  for  it  will  aflbrd  him  no  protection.' 
An  execution  against* joint  debtors,  where  all  the  defendants  were  not 
served  with  the  summons  or  process  by  which  the  action  was  com- 
menced, shall  be  indorsed  by  the  justice  with  the  name  of  the  defendant 
who  did  not  appear  in  the  suit,  or  was  not  served,  and  the  same  shall  be 
executed  as  executions  similarly  indorsed  issued  upon  judgments  in 
courts  of  record." 

^  1032.  The  powers,  duties,  and  liabilities  of  a  constable  in  the  exe- 
cution of  an  execution  against  i)roperty,  from  a  justice's  court,  are 
with  some  slight  excejitions,  the  same  as  those  imposed  ui)on  sherills 
under  similar  process  from  courts  of  record.  These  will  be  found  under 
the  proper  heads,  in  the  preceding  part  treating  of  the  duties  of  sheriffs, 
and  will  not  be  repeated  here,  unless  they  dili'er  in  any  respect,  when 
such  difference  will  be  pointed  out. 

,§  1033.  A  justice's  execution,  unlike  one  issued  from  a  court  of 
record,  or  one  issued  by  the  county  clerk,  upon  the  transcript  of  a 
justice's  judgment,  is  not  a  lien  upon  the  defendant's  goods  until  an 
actual  levy  is  made  under  it.  Though,  where  the  same  constable 
receives  a  second  execution  against  the  same  defendant,  after  he  has 
made  a  levy  under  the  first  one,  such  levy  will  enure  to  the  benefit 
of  the  second  execution,  though  no  actual  levy  should  be  made  under 
such  second  execution ;  and  this  too,  although  the  first  execution  has 
become  dormant  in  the  hands  of  the  constable  by  reason  of  instruc- 
tions from  the  plaintiff  to  delay,  for  the  levy  in  such  case  is  still  good  as 
against  the  defendant  in  the  execution.^  In  all  cases,  the  priority  of 
liens  of  justices'  executions,  is  determined  by  the  time  of  the  actual 
levy,^  unless  in  the  case  of  an  execution  upon  a  judgment  obtained 
in    an  action   commenced   by   attachment,   where    the   lien   of    the 

>  2  R.  S.  208,  ^)233.  4  2  R.  S.  251,  f>141.  «  2  R.  S.  2o].  (/;141.  142. 

Id.  45;^,  ^164,  4th  ed.               Id.  447,  <3127,  4th  t-d,  Id.  447,  ^(>124, 12o,4thed. 

s  5  WcikI.  276.                                Code,  <)(J4,  sub.  12.  Ant'',  §431. 

s  10  John.  405.  «  6  Wend.  270.  7  2  Com.  451. 

20    "      63.                              9    "       338.  s  13  John.  248. 


3iH3  JUSTICICS'  FXIXITIONS. 

attaclimont  continues  after  the  oblniniuL;  the  jutli,'ment  for  a  suflicient 
time  tonliowof  a  levy  under  the  execution.' 

;>  1034,  Under  nn  execution  issued  by  a  justice  of  tlie  jnace.  the 
same  i^oods  and  chattels  can  he  seized  and  si»ld,  as  ujkmi  executions  in 
courts  ol  record.  Xothinj?  but  goods  and  chattels,  includinix  personal 
and  moveable  goods  however,  can  be  taken  under  it.  Neither  the 
judgment  n<»r  execution  attaches  as  a  lien  upon  real  estate  or  chattels 
real,  nor  to  anything  aHixed  to  the  freehold,  unless  it  be  such  fixtures 
as  are  liable  to  levy  and  sale  upon  execution.  A  tenantcy  at  will  or 
by  sutlerance.  is  declared  by  statute  to  be  a  chattel  interest,  but  the 
same  section  also  providc-F  that  it  cannot  as  such  be  sold  on  execution.'^ 
where  the  suit  was  commenced  by  attachment,  and  the  defendant  was 
not  personally  served  with  the  attachment  or  summons,  and  does  not 
appear,  the  execution  cannot  be  levied  upon  any  other  property,  than 
such  as  was  seized  under  the  attachment.^ 

i>  lO,*};").  The  levy,  if  property  subject  to  the  execution  can  be  found, 
should  be  made  forthwith,  unless  the  defendant  will  pay  the  execution. 
At  all  events,  such  levy  should  be  made  sufliciently  long  before  the 
return  day  of  the  execution,  to  allow  the  property  to  be  duly  adver- 
tised and  sold,  as  no  levy  or  sale  can  be  made  after  the  return  dav  of 
such  execution,  unless  the  same  shall  have  been  renewed.  And  if 
the  same  is  renewed,  such  levy  and  sale  must  be  made  within  the 
time  for  which  such  execution  is  renewed.*  If  goods  have  been  levied 
on  before  sucli  renewal,  but  have  not  been  sold,  they  should,  on  the  ' 
renewal  of  the  execution,  be  again  levied  on,  for  the  levy  is  gone.' 
But  it  has  been  held,  that  where  no  sale  has  been  made  for  want  of 
buyers,  the  execution  may  be  renewed,  on  the  last  day,  so  as  to  con- 
tinue the  lien.' 

^  HY.W.  As  the  execution  is  returnable  sixty  days  from  the  date  of 
the  same  ;  and  as  it  creates  no  lien  upon  the  goods  of  the  defendant, 
until  actual  levy,  it  is  not  necessary  that  the  constable  should,  like  the 
sherifT,  mark  upon  it  the  time  of  its  receipt  by  him,  though  it  will  be 
well  for  him  to  do  so.  IJut  the  constable  is  rccpiired,  after  taking  goods 
and  chattels  into  his  custody,  by  virtue  of  an  execution,  to  indorse 
thereon,  the  time  of  levying  the  same,  with  an  inventory  of  the  arti- 
cles levied  on.  If  the  articles  are  numerous,  they  maybe  enumerated 
on  a  separate  pajier,  whi(.h  should  be  attacheil  to  the  execution,  and 
the  orticer,  by  an  indorsement  on  the  execution  of  the  time  of  the  levy, 
should  refer  to  such  imnexed  inventory.^ 

'  Ante,  f;1010.  »  Lawn  1831,  ch.  300,  <>39.  •  7  Hftrb.  70. 

L.1WII  1h;'.1,  ch.  JWO,  <;>30.  *  '1  U.  H.  '2;>:\,  <M.  '  •!  U.  H.  '2!i2,  ^>M«. 

•  1  K.  H.  721!,  (fi.                         h\  4llt,  <;U f,  lib  cd.  M.  \\',(j,V-W,  Uh  cd. 

2  R.  8.  \Z1,  <fi,  4lb  cd.  »  2  Cow.  Tr.  WO.  1  Cow.  Tr.  640. 


JUSTICES'  EXECUTIONS.  397 

^  1037.  The  constable  may,  like  the  sherifT,  call  a  jury  to  try  the 
title  of  anv  <'Iaiiiiaiit  to  tiu^  pio|i('rty  levied  on  by  him,  and  with  the 
like  eilect.'  And  he  may  also,  like  the  sherill',  lake  a  receijtior  lor  the 
property  seized  ;  and  he  has  the  same  rights  in  resjiect  thereto,  as  the 
sherilT  in  siinilar  cases,  except  that  he  must  demand  the  pro|»erty  of 
the  receiptor  within  the  life  of  the  execution,  otherwise  his  lien  is  gone, 
and  he  cannot  maintain  an  action  upon  such  receipt.'^ 

(5  103S.  Immediately  alter  a  levy,  the  constable  shall  give  jmblic  no- 
tice by  advertisement,  signed  by  himself,  and  put  up  in  three  i)ublic 
places  in  the  city  or  town  where  such  goods  and  chattels  shall  have 
been  taken,  of  the  time  and  place  within  such  city  or  town,  when  and 
where  they  will  be  exposed  for  sale.  Such  notice  shall  describe  the 
goods  and  chattels  taken,  and  shall  be  put  up  at  least  five  days  before 
the  time  appointed  for  the  sale.^  Though  the  statute  refpiires  that  the 
notice  shall  be  posted  immediately  after  the  levy  is  made,  yet  if  it  is 
posted  in  sufRcient  time  to  make  sale  in  pursuance  thereof,  before 
the  return  day  of  the  execution,  it  will  be  sulFicient.  The  notice  must  be 
posted,  and  the  sale  must  be  had,  in  the  town  where  the  goods  are 
taken.*  The  powers  and  duties  of  the  constable  upon  the  sale,  are 
the  same  as  those  of  sherifl'  on  the  sale  of  goods  on  execution.^  No 
constable  or  other  officer  shall  directly  or  indirectly  purchase  any 
goods  or  chattels  at  any  sale  made  by  him  upon  execution,  but  every 
such  purchase  shall  be  absolutely  void.*  If  no  bidders  attend  the  sale, 
the  officer  shall  postpone  it,  and  give  notice  to  the  plaintifi'  who  should 
attend  and  bid  himself,  and  if  he  do  not  the  constable  is  justified  in  re- 
turning that  the  property  remains  on  his  hands  for  want  of  bidders  ; 
and  so  he  would  be  excused,  if  he  could  not  sell  the  proj)erty  but  at  a 
great  sacrifice.  Yet  after  such  return  he  must  })roceed  to  sell  at  the 
first  opportunity.' 

§  1030.  If  the  constable  has  not  before  the  return  day  made  the 
whole  amount  of  the  execution,  or  arrested  the  defendant,'  if  it  be 
acainst  the  body,  the  execution  may  from  time  to  time  be  renewed  by 
the  justice  issuing  the  same,  by  an  indorsement  thereon,  signed  by 
him,  and  dated  of  the  day  when  renewed."  Such  execution  may  be 
renewed,  although  there  has  been  a  levy  of  sufficient  property  to  sat- 
isfy it,  if  there  has  not  been  sufficient  time  to  make  sale  before  the  re- 
turn day ;"'  and  it  has  been  held  that  it  may  be  renewed  on  the  last 
day,  so  as  to  retain  the  lien  of  the  levy  when  the  property  could  not  be 

1  Ante,  $438.  s  2  R.  S.  252,  f)148.  »  o  Cow.  Tr.  511. 

7  Wend.  236.                             Id.  447,  ()\W,  4th  ed.  9  2  R.  S.  252,  $145. 

8  Cow.  65.  *  2  Cow.  Tr.  547.  Id.  441,  ()V2S,  4th  ed. 
10  John.  98.  5  Anto,  ^(>478,  &c.  >"  1  Dcuio,  674. 

«  9  John.  361.  «  2  R.  S.  252,  <)lbO. 

23  Wend.  606.  Id.  448,  <)U2. 

1  2  Cow.  21. 


398  jrsTiCKS'  i:xi:(H'T1ons. 

sold  for  want  of  bidders.'  And  it  may  l>c  rciicwcd  at  any  time  after 
the  return  day.  nnil  as  often  as  necessary.'  It  lias  been  determined  tliat 
the  hmitation  in  the  Revised  Statutes  roncerning  the  issuing  of 
exeeiitions,  appHes  t()  tlie  issuini^j  thereof  solely,  and  not  to  the  renewal  of 
such  executions,  and  that  where  an  exc«'Ution  had  heen  duly  issued 
and  returned  unsatisfied,  it  might  be  renewed  by  the  justice  after  the 
two  years  from  the  rendition  of  the  judijment  had  elapsed.'  Hut  it  is 
intimated  in  the  opinion  of  the  court,  that  as  the  Code  does  not  pro- 
vide in  terms  for  the  renewal  of  an  execution,  but  limits  the 
lime  of  issuing  one  to  five  years  from  the  entry  of  the  judgment,  the 
issuing  and  renewal  of  an  execution  j)robably  ought  to  be  considered 
as  one  and  the  same  thing,  and  it  would  be  held  that  neither  could  be 
done  after  five  years.*  If  the  renewal  is  not  signed  by  the  justice,  it 
is  void,  and  the  constable  acting  under  it  will  be  a  trespasser.*  If  any 
part  of  the  execution  has  been  satisfied,  the  indorsement  of  renewal 
shall  express  the  sum  due  on  the  execution ;'  though  if  it  docs  not  the 
constable  will  not  be  a  trespasser,  if  he  does  not  seek  to  collect  more 
than  the  sum  due." 

g  1040.  The  Revised  Statutes  provide  that  every  such  indorse- 
ment shall  be  deemed  to  renew  the  execution  in  full  force  in  all 
resi)ects,  for  ninety  days,  if  it  is  issued  on  a  judgment  for  more  than 
twenty-five  dollars,  exclusive  of  costs ;  and  for  thirty  days  in  all  other 
cases  ;  and  no  longer  ;■*  whether  the  execution  is  ac^ainst  property  only 
or  against  the  proi)erty  and  person  of  the  defemlant.*  ikit  the  Code 
having  provided  that  every  execution  shall  be  returnable  sixty  days  from 
the  date  of  the  same  ;'"  it  has  created  a  doubt  for  how  long  such 
indorsement  shall  now  be  deemed  to  have  renewed  the  execution.  It 
has  been  held  in  one  case,"  that  the  old  statute  is  in  force,  but  the 
reasons  given  therefor  have  not  as  yet  produced  conviction  of  their 
correctness,  and  the  opinion  is  entertained,  that  such  indorsement  must 
now  l)e  deemed  to  renew  the  execution,  for  the  same  time  as  it  orig- 
inally had  to  run  ;  that  is  sixty  days  from  the  date  thereof  This 
is  an  important  consideration,  for  it  is  declared  that  a  constable  shall 
not  do  any  act  under  a  renewed  execution,  after  the  expiration  of  the 
lime  or  times,  for  which  the  same  may  be  renewed.'" 

^  lOU.  Where  the  execution  is  against  the  body,  the  constal)le  is 
bound,  first  to  search  for  property  before  he  takes  the  body,  and  he 
has  a  reasonable  time   to  make  such   search."     If  the  defendant  de- 

1  7  narb.  70.  •  '1  U.  S.  2.')!,  <>1 15.  "  16  n.irb.  004. 

U  Wend.  661.  M.  117,  ^1:^^,  tth  cl.  ^i '1\\.  1^.  •2!>',\,(^\f,\. 

i:c:ow.  Tr.  611.  7  2  Hill,  ."{^H.  I.I.  ll".',  <>1  II,  4tli  cd. 

»  1  Kcman,  2hl.  •  2  11.  S  lUil,  M46.  '^  4  Wend.  (53it. 
4  n,. 'iX.'i.                                      M   rW.C^lliH,  4lhcd.  VI    "       146. 

»  12  W.nd.  146,  •  1  W.ii.l  r,r,i, 

•1  Hill,  Z'l'd.  •»  Code,  ^G4,  sub.  12. 


JUSTICES'  EXECUTIONS.  309 

clares  tliat  he  lias  no  property,  llie  constable  may  arrest  liiin  at  once, 
without  seeking  lor  any.  J  Jut  if  without  seei<iri<^  lor  i)roi)erty  or 
inquiring  of  the  defendant  for  any,  lie  arrests  hitn,  he  does  it  at  his 
peril,  and  is  liable  if  it  appears  that  with  reasonable  dilif,'eiice  be  niiglil 
have  found  property.'  Where  the  defendant  sues  for  such  arrest,  he 
must  show  that  there  was  property  clearly  subject  to  the  execution,  and 
that  the  constable  had  due  notice  of  it.'  If  the  constable  in  sur-h  case 
can  fmd  no  proj^erty,  or  if  he  has  found  some  and  duly  sold  it,  and 
there  still  remains  a  balance  due  on  the  execution,  he  shall  take  the  body 
of  the  defendant  and  convey  him  to  the  common  jail  of  the  city  or 
county,  the  keeper  whereof  is  required  to  keep  such  person  in  safe  cus- 
tody in  jail  until  the  debt  is  paid,  or  he  is  thence  discharged  according  to 
law.'  Though  the  constable  have  until  the  return  day,  to  execute  the 
execution  against  the  body,  yet  if  he  arrest  the  defendant  before,  and 
suller  him  to  go  at  large,  it  will  be  an  escape  though  he  have  him  on 
the  return  day.* 

^  1042.  In  serving  any  warrant  or  execution  for  a  forfeiture  or  pen- 
alty on  a  conviction  before  a  justice  under  any  statute,  the  ofhcer  may 
break  open  doors  to  make  a  levy  or  to  arrest  the  defendant,  if  neces- 
sary, after  a  demand  that  they  be  opened,  and  a  refusal.'  And  when 
an  arrest  is  made,  if  the  warrant  so  require,  he  shall  carry  the  defend- 
ant to  the  county  jail,  there  to  be  detained  during  the  time  mentioned 
in  said  warrant.  When  the  constable  shall  collect  any  money  on  such 
warrant  or  execution,  he  shall  pay  the  same  to  the  justice  at  the  time 
he  makes  return  to  the  warrant,  the  same  as  on  executions  in  civil 
matters,  unless  otherwise  provided  by  statute. 

g  1043.  Whenever  any  recovery  shall  be  had  before  a  justice  of  the 
peace,  for  any  penalty  or  forfeiture  incurred  by  violating  any  provi- 
sion contained  in  the  ninth  title  of  the  twentieth  chajiter  of  the  first  jiart 
of  the  Revised  Statutes,  which  is  entitled  "Of  excise  and  the  regula- 
tion of  taverns  and  groceries  ;"  or  for  any  penalty  or  forfeiture  incur- 
red in  violating  any  provision  contained  in  the  eleventh  title  of  the  same 
chapter,  relating  to  fisheries,  execution  shall  issue  thereon  immediately, 
and  the  justice  shall  indorse  upon  such  execution,  the  cause  for  which 
such  judgment  was  rendered  ;  and  in  case  no  goods  or  chattels  can  be 
found  to  satisfy  such  execution,  the  constable  having  the  same  shall 
commit  such  defendant  to  the  jail  of  the  county,  and  shall  deliver  to 
the  keeper  thereof,  a  certified  copy  of  such  execution  and  indorsement  ; 
by  virtue  of  which,  such  keeper  shall  detain  such  defendant  for  a 

1  4  Wcml.  639.  3  2  R.  S.  252,  ()\bl.  *  13  John.  503. 

a  12  Wend.  115.  Id.  448,  ^133,  4tb  cd.  s  2  Cow.  Tr.  322. 


400  JUSTICES'  EXECUTIONS. 

periotl  not  exceeding  sixty  days,  w  iihoul  allowing  him  the  benefit  of 
the  hberlies  of  the  jail.' 

5  1011.  A  constable,  a.s  has  alrcaily  Ih-cii  seen,  cannot  levy,  or  sell, 
or  arrest  a  defendant,  ou  an  execution,  alter  the  reluru  day,  unless  it 
has  been  duly  renewed  ;  nor,  in  such  case,  can  he  do  any  act  under 
the  renewed  exe«nition,  after  the  expiration  of  the  time,  or  times,  for 
which  the  same  may  be  renewed.^  But  if  the  execution  be  against 
the  body,  and  the  defendant  has  been  duly  arreste<l  thereon,  and  es- 
capes without  the  knowledge  or  assent  of  the  ollicer,  ho  may  be 
retaken  after  such  time  ex|)ires. 

^  1015.  Whether  the  constable  has  collected  the  whole  or  any  part 
of  the  execution  ;  or  he  can  find  no  goods ;  or  whether  he  has  or  has 
not  arrested  the  defendant,  it  is  his  duty  to  return  the  execution  by  the 
return  day  to  the  justice  who  issued  the  same,  and  pay  to  him  the  debt 
or  damages  and  costs  levied,  or  so  much  thereof  us  he  may  have  col- 
lected, returning  the  overplus,  if  any,  to  the  person  against  whom  the 
execution  was  issued.^  If  a  constable  neglect  to  return  an  execution 
within  five  days  after  the  return  day  thereof,  the  party  in  whose  favor 
the  same  was  issued  may  maintain  an  action  of  debt  against  such  con- 
stable, and  shall  recover  therein  the  amount  of  the  execution,  with  interest 
from  the  time  of  the  rendition  of  the  judgment  upon  which  the  same  was 
issued  ;  and  if  a  judgment  be  obtained  in  such  suit  against  the  consta- 
ble, execution  shall  immediately  issue  thereon.*  The  constable  may 
show  by  jtarol  that  he  has  returned  an  execution,  when  sued  for 
neglect,  though  the  justice  has  not  entered  it  in  his  docket.* 

5  lOlG.  If  the  constable  has  made  nothing  on  the  execution,  he  shall 
return  that  the  defendant  has  no  goods  or  chattels  in  his  county,  where- 
of he  can  make  the  amount  of  the  execution,  or  simply  "nulla  bona." 
If  he  has  made  the  whole  or  any  part  of  the  moneys,  he  shall  pay  the 
same  to  the  justice  who  issued  the  execution,  and  make  return  that  he 
has  collected  the  amount  of  the  execution,  or  simply  "satisfied."  If 
only  a  part  of  the  moneys  is  made,  he  shall  state  how  much  he  has 
collected,  and  that  the  defendant  has  no  goods  or  chattels  whereof  to 
make  the  balance  of  the  moneys.  If  the  constable  have  two  execu- 
tions against  the  same  defendant,  levied  at  the  same  time,  and  there  is 
not  sulhcient  realized  to  pay  all,  he  must  i)ay  dollar  for  dollar  on  each 
execution,  until  the  smaller  execution  is  paid,  and  then  ajiply  the  balance 
on  the  largcrexecution.  They  are  not  in  such  case  to  be  paid  in  projxir- 
lionlo  the  amounts  of  the  executions,  but  e(|ually.*  After  ac<»nstablehas 
returned  an  execution  "  satisfied  "  by  sale,  he  cannot  afterwards  amend 

I  2  R.  8.  261,  <iH.1.  i  '2  U.  P.  262,  <>H9.                  »  0  Hill,  488. 

Id.  447,a2fi,  4tli  t<l.  M.  IIH,  a:5l,4lh  ed.           •  1  Cow.  215. 

a  2  K.  H   '2h^,  <;!•>>  <  2  K.  .'^.  2.>.!,  <,161. 

Id.  4iy,  «iH3,  4Ui  cd.  Id.  4iy,  ^142,  4lb  cd. 


DUTIES  OF  CONSTABLES  IN  SPKCIAL  PROCEEDINGS.  ^UJl 

llmt  return  by  a  supplemei-.tary  indorsement  on  the  execution  that  he 
has  been  sued  and  a  recovery  had  against  him  for  the  projicrty.' 

(^  1017.  Any  constable  to  whom  any  execution  shall  have  been 
issued  and  delivered,  and  whose  term  of  olRce  shall  expire  before  the 
time  within  which  the  collection  or  return  of  such  execution  is  requir- 
ed by  law,  shall  and  may  proceed  in  all  matters  relative  to  such  execu- 
tion, in  the  same  manner  as  if  the  term  of  office  of  such  constable  had 
not  expired.' 

gl  1018.  When  there  is  an  appeal  from  a  justice's  judgment,  after 
execution  issued,  the  constable  holding  the  execution  shall,  on  being 
served  with  a  copy  of  the  undertaking  on  the  appeal,  certified  by  the 
justice,  stay  all  proceedings  on  the  execution.^  If,  however,  he  has 
made  a  levy,  or  arrested  the  defendant,  before  he  is  so  served  with  the 
copy  of  the  undertaking,  he  is  not  to  release  either,  but  is  to  retain  the 
prisoner  or  the  goods  levied  on,  until  the  decision  of  the  appeal. 

CHAPTER  VII. 

DUTIES  OF  CONSTABLES  IN  SPECIAL    PROCEEDINGS. 

1.   IN     nASTARDY    CASES. 

^  1049.  If  any  woman  shall  be  delivered  of  a  bastard  child,  which 
shall  be  chargeable,  or  likely  to  become  chargeable,  to  any  county, 
city  or  town ;  or  shall  be  pregnant  of  a  child  likely  to  be  bom  a  bas- 
tard, and  to  become  chargeable  to  any  county,  city  or  town ;  the 
superintendents  of  the  poor  of  the  county,  or  any  of  them,  or  the  over- 
seers of  the  poor  of  the  town  or  city,  or  any  of  them,  where  such 
woman  shall  be,  shall  apply  to  some  justice  of  the  same  county  to 
make  inquiry  into  the  facts  and  circumstances  of  the  case.* 

^  10r)0.  Such  justice  shall,  by  examination  of  such  woman  on  oath, 
and  upon  such  other  testimony  as  may  be  offered,  ascertain  the  father 
of  such  bastard,  or  of  such  child  likely  to  be  born  a  bastard  ;  and  shall 
thereupon  issue  his  warrant,  directed  to  any  constable  of  the  county, 
commanding  him  forthwith  to  apprehend  such  reputed  father,  and  to 
bring  him  before  such  justice,  for  the  purpose  of  having  an  adjudica- 
tion respecting  the  filiation  of  such  bastard,  or  of  such  child  likely  to 
be  bom  a  bastard.® 

^  1051.  The  constable  to  whom  such  warrant  shall  be  delivered  for 
execution,  shall  immediately  apprehend  such  reputed  father  and  bring 
him  before  such  justice.  .The  warrant,  however,  continues   in  force 

1  11  Barb.  481.  ^  Code,  <>357.  s  l  R.  s.  G43,  (;6. 

»  2  R.  S.  274,  <>285.  <  1  R.  S.  642,  ^6.  2  R.  S.  67,  ^6,  4th  cd. 

Id.  459,  ^203,  4th  cd.  2  R.  S.  67,  <)  6,  4th  ed. 


9  Wend.  236. 


52 


402  ni'TIES  OFCONSTAHLRS  LN  SPIXIAL  PROCEEDINGS. 

until  it  is  fully  executed  :  niid  if  the  party,  after  arrest,  is  allowed  to 
go  at  large,  or  csra|>es,  he  may  be  again  arrested.  The  |)roceedings 
are  quasi  criminal  in  their  character,  but  it  is  not  conceived  that  the  ofli- 
cor  holding  the  warrant  would  be  authorized  in  executing  the  samp,  like 
criminal  process.  The  safer  rourse  will  l)e  for  the  olhrer  to  j)rocet'd 
upon  the  warrant  as  Mi>on  process  for  the  arrest  of  the  defendant  in  a 
civil  action.  The  warrant  may  be  executed  in  any  part  of  the  coun- 
ty, and  in  the  day  or  night,  but  not  up(»n  Sunday  ;  and  the  door  of  the 
defendant's  dwelling  house  cannot  be  broken  open  to  arrest  him  in  the 
first  instance.  ]]ul  it  is  otherwise  if,  after  due  arrest,  he  shall  have 
escaped. 

^  lO.'iS.  If  tl>e  person  charged  as  such  reputed  father  shall  be  or 
reside  in  any  other  county  of  the  state  than  that  in  which  such  warrant 
issued,  the  justice  issuing  the  same  shall  in  writing  thereon,  direct  the 
sum  ii\  which  any  bond  shall  be  taken  of  the  person  so  charged  ;  and 
it  shall  be  the  duty  of  the  constable,  or  other  jtroperofiicer  having  the 
same,  to  carry  it  to  some  justice  of  the  city  or  county  wherein  such 
person  resides,  or  can  be  found.  The  justice  to  whom  the  same  shall 
be  presented,  on  proof  being  made  to  him  of  the  hand-writing  of 
the  justice  who  issued  such  warrant,  shall  indorse  his  name  thereon, 
with  an  authority  to  arrest  such  person  in  the  county  where  the 
justice  so  indorsing  shall  reside  ;  which  shall  be  a  sufficient  authority 
to  the  person  bringing  such  warrant,  and  to  all  others  to  whom  it 
was  originally  directed,  to  execute  the  same  in  the  county  where  it 
was  indorsed.' 

^  1053.  Uj>on  the  j)erson  so  charged  Iteing  apprehended,  he  shall  be 
carried  before  the  justice  who  indorsed  the  said  warrant,  or  some  other 
justice  of  the  same  county,  who  may  take  from  such  person  a  bond  to 
the  ]>eople  of  this  state,  with  good  and  sufficient  sureties,  in  the  sum  so 
dire<'ted  in  the  said  warrant,  with  condition  to  indemnify  the  county, 
and  town  or  city,  where  the  said  bastard  shall  have  been  born,  or 
where  the  woman  likely  to  have  such  bastard  shall  be,  and  every  other 
county,  town  or  city  which  may  have  incurred  any  expense,  or  may  be 
put  to  any  expense  for  the  support  of  such  child,  or  of  its  mother  during 
her  confmeiiient  and  recovery  therefrom,  airainsl  all  such  expenses, 
and  to  pay  the  costs  of  apjtrehending  such  father,  and  of  any  order 
of  filiation  that  may  be  made ;  or  such  justice  may  take  from  the 
person  so  charged  and  apprehended,  a  bond  as  aforesaid,  in  the  sum 
directed  on  said  warrant,  with  good  and  sullicient  sureties,  conditioned 
that  such  person  will  a])])ear  at  the  next  coujt  of  sessions  to  be  holden 


>  1  R.  8.  648,  C7. 
2  B.  8.  67,  0,  4lb 


t<l 


DUTIES  OF  CONSTAMLES  INSIMICIAI.  PIlOCEi:i)L\<;.S.  403 

in  the  county   where   such   warrant  was  originally   issued,  and    not 
depart  the  said  court  without  its  leave.' 

g  1054.  Upon  a  bond  being  so  entered  into,  with  either  of  ihe  con- 
ditions aforesaid,  the  justice  taking  the  same  shall  discharge  tlic  pers^m 
so  apprehended  from  the  arrest,  and  shall  indorse  upon  the  warrant  a 
certificate  to  that  eflect.  He  shall  deliver  the  warrant,  with  the  bond 
so  taken  by  him,  to  the  constable  who  brought  such  warrant,  who  shall 
deliver  the  same  to  the  justice  who  granted  the  same,  who  shall  pro- 
ceed thereupon  in  the  same  manner  as  if  such  bond  had  been  taken  by 
him.' 

^  1055.  Every  constable  or  other  ofTicer  to  whom  any  bond  of  the 
putative  father  of  a  bastard,  or  of  a  child  likely  to  be  born  a  bastard, 
taken  out  of  the  county  where  the  warrant  was  issued,  shall  be  deliv- 
ered as  herein  before  directed,  who  shall  neglect  or  refuse  to  deliver 
the  same  to  the  justice  who  issue<l  such  warrant,  within  fitteen 
days  after  the  receipt  of  the  same,  shall  forfeit  the  surn  of  thirty-five 
dollars,  to  be  sued  for  and  recovereil  by  and  in  the  name  of  any  over- 
seers of  the  poor,  or  county  superintendents,  at  whose  instance  the 
said  warrant  was  issued.' 

^  1050.  If  the  person  so  charged  and  apprehended  shall  not  exe- 
cute the  bond  so  required,  with  one  or  other  of  the  conditions  afore- 
said, to  the  satisfaction  of  the  justice  before  whom  he  shall  be  brought, 
then  the  constable  or  other  proper  officer  having  such  warrant,  shall 
take  the  person  so  apprehended  before  the  justice  who  originally 
issued  the  warrant.* 

^  1057.  If  any  justice  who  shall  have  issued  any  warrant  for  the  appre- 
hension of  the  father  of  a  bastard,  or  of  a  child  likely  to  be  born  a 
bastard,  shall  have  died,  vacated  his  office,  or  be  absent  on  the  return 
of  such  warrant,  the  constable  who  may  apprehend  such  father  shall 
convey  him  before  some  other  justice  of  the  same  town,  who  shall 
have  the  same  authority  to  jn-oceed  thereon,  as  the  justice  who  issued 
such  warrant.*  In  such  case  the  constable's  return  to  the  warrant  should 
show  the  death,  vacancy,  or  absence  of  the  justice  who  issued  the  war- 
rant, before  any  other  justice  should  take  cognizance  of  the  matter. 

g  1058.  During  the  examination  of  the  person  charged,  and  until  such 
person  shall  be  discharged  by  the  justice  before  whom  the  examination 
is  had,  he  shall  remain  in  the  custody  of  the  constable  wiio  apprehend- 
ed him,  unless  a  bond  shall  have  been  taken  for  his  appearance,  as  pro- 
vided by  statute  ;  and  when  committed  to  any  jail  by  the  order  of  such 

>  1  R.  S.  643,  ()8.  3 1  R.  S.  GoG,  ^69.  s  1  R.  S.  656.  tw  1. 

2  R.  S.  67,  ()8.  4th  ed.  2  R.  S.  65,  ^70,  4th  ed.  2  R.  S.  68,  <)72,  4ih  cd. 

1  Hill.  298.  *  1  R.  S.  643,  ^10. 

a  1  R.  S.  643,  f>9.  2  R.  S.  68.  ^10,  4th  ed. 

2  R.  S.  58,  <>9,  4th  cd. 


404  DUTIES  OF  CONSTABLES  IN  SPECIAL  PROCEEDINGS. 

justice,  lie  shall  be  i-onfiiu'd  therein,  without  being  let  t«i  bail,  and  with- 
out being  entitled  to  the  liberties  thereof.' 

^  1059.  In  oxeruting  the  warrant  or  order  of  comniiinienl  of  the 
mother  of  a  ba.stnni,  who  refuses  to  testify  or  declare  who  the  father 
of  such  bastard  is,  the  |>owers  of  the  constable  are  the  same  us  in 
making  the  arrest,  or  committing  the  father  of  such  bastard  to  j)rison. 
The  manner  in  which  the  father  and  mother  of  a  bastard  shall  be  com- 
mitted to  jail  and  confnied  therein,  and  how  and  when  they  may  be 
discharged  therefrom,  will  be  found  under  the  duties  of  sherifls  as 
keepers  of  jails  in  criminal  cases.' 

2.  IX    CASES    OF    LINACY. 

^  lOGO.  In  case  of  the  refusal  or  neglect  of  any  committee  of  any 
lunatic,  who  has  become  furiously  mad,  or  so  far  disordered  in  his 
senses  as  to  endanger  his  own  person,  or  the  person  or  i>roj>erty  of 
others,  if  permitted  to  go  at  large,  or  of  his  relations,  to  confine  and 
maintain  such  person,  in  such  manner  as  shall  be  approved  by  the 
overseers  of  the  poor  of  the  city  or  town  ;  or  where  there  is  no 
committee  or  relative  of  sufficient  ability,  it  shall  be  the  duty  of  the 
overseers  of  the  poor  of  the  city  or  town  where  any  lunatic  or  mad  per- 
son shall  be  found,  to  apj)ly  to  any  two  justices  of  the  peace  of  the 
same  city  or  town,  who,  upon  being  satisfied  upon  examination,  that  it 
would  be  dangerous  to  permit  such  lunatic  to  go  at  large,  shall  issue 
their  warrant,  directed  to  the  constables  and  overseers  of  the  poor  of 
such  city  or  town,  commanding  them  to  cause  such  lunatic  or  mad 
person  to  be  apprehended,  and  to  l)e  safely  locked  up  and  confined  in 
such  secure  place  as  may  be  provided  by  the  overseers  of  the  poor  to 
whom  the  same  shall  be  directed.' 

^  1001.  Any  two  justices  of  the  peace  of  the  city  or  town  where 
any  such  lunatic  or  mad  person  shall  be'foUnd,  may,  without  the  appli- 
cation of  any  overseers  of  the  poor,  and  uj)on  their  own  view,  or  upon 
the  information  or  oath  of  others,  whenever  they  deem  it  necessary, 
issue  their  warrant  for  the  apjirehension  and  confinement  of  such 
lunatic  or  mad  jterson  as  aforesaid.* 

5  1002.  iSuch  warrants  are  to  be  directed  to  the  constables  and 
overseers  of  the  poor  of  the  city  or  town  where  such  lunatic  is.  This 
does  not  rccpiire  that  all  such  olficers  of  such  city  or  town  should 
unite  in  the  execution  of  the  warrant.  It  will  be  sulficient,  if  it  is 
delivered  to  any  one  of  such  constables.  He  may  make  the  arrest  of 
such  lunatic,  and  deliver  him  into  custody  and  safe  keeping  at  the  j>lace 

« 1  R  8.  G46,  <,M.  *  1  U  H.  CTl,  yl.  4  i  Ji.  y.  C26.  ^«. 

2  R.  H  fi'J, vl7,4lhcd.  '-J  B.  8.  87,  ()4,  4th  ed.  'J  R.  8.  3tt,  ^,  4lh  cd. 

>  Aolc,  ^^  Z40,  fLc. 


DUTIES  OF  CONSTABLES  IN  SPECIAL  PROCEEDINGS.  405 

provided  by  the  overseers  of  the  poor  to  whom  the  same  shall  be  also 
directed.  The  arrest  should  be  made  as  upon  a  warrant  in  a  rivil 
action. 

g  1003.  It  shall  be  the  duty  of  the  overseers  of  the  poor  to  whom 
such  warrant  shall  be  directed,  to  procure  a  suitable  place  for  the 
confinement  of  such  lunatic'  Such  place  shall  be  within  the  town  or 
city  of  which  such  overseers  may  be  officers,  or  within  the  county  in 
which  such  city  or  town  may  be  situated,  or  in  the  county  poor-house 
in  those  counties  where  such  houses  are  established,  or  in  such  private 
or  public  asylum  as  may  be  approved  by  any  standing  order  or  reso- 
lution of  the  supervisors  of  the  county  in  which  such  city  or  town  may 
be  situated,  or  in  the  lunatic  asylum  in  the  city  of  New  York.*  But 
no  such  lunatic  shall  be  committed  as  a  disorderly  person,  to  any  prison, 
jail,  or  house  of  correction,  or  confined  therein,  unless  an  agreement 
shall  have  been  made  for  that  purpose  with  the  keepers  thereof  ;  or  in 
any  other  way,  than  as  herein  directed.'  And  no  such  lunatic  shall 
be  confined  in  the  same  room  with  any  person  charged  with  or  con- 
victed of  any  crime ;  nor  shall  any  such  person  be  confined  in  any 
such  place  more  than  ten  days,  and  if  he  continue  furiously  mad  or 
dangerous,  he  shall  be  sent  within  ten  days  to  the  state  lunatic  asylum, 
or  to  such  public  or  private  asylum  as  may  be  approved  by  a  standing 
order  or  resolution  of  the  supervisors  of  the  county.  * 

^  1064.  Any  overseer  of  the  poor,  constable,  keeper  of  a  jail,  or 
other  person,  who  shall  confine  any  such  lunatic  or  mad  person,  in  any 
other  manner  or  in  any  other  place  than  such  as  are  herein  prescribed, 
shall  be  deemed  guilty  of  a  misdemeanor  ;  and  on  conviction  shall  be 
liable  to  a  fine  not  exceeding  two  hundred  and  fifty  dollars,  or  to  im- 
prisonment not  exceeding  one  year,  or  both,  in  the  discretion  of  the 
court  before  which  the  conviction  shall  be  had.' 

3.    HABITUAL    DRUNKARDS. 

^  1065.  Any  person  designated  by  the  overseers  of  the  poor  of  any 
town,  in  the  manner  provided  by  statute,  as  an  habitual  drunkard,  may 
apply  to  any  justice  of  the  peace  of  the  city  or  town  in  which  the 
person  so  designated  resides,  for  process  to  summon  a  jury  to  try  and 
determine  such  fact  of  drunkenness.* 

g  1066.  On  such  application,  the  justice  shall  immediately  give 
notice  thereof,  in  writing,  to  the  overseers  of  the  poor,  specifying  the 
time  and  place  where  the  parties  shall  meet  for  the  trial  of  such  fact, 


:.G6.  3  2  R.  S.  624,  ^6.  «  1  R.  S.  625,  ^11. 

,  <)6, 4th  ed.  2  R.  S.  33,  ^6,  4th  ed.  2  R.  S.  38,  ^11,  4th  cd, 

»1  R.  S.  G24.  \)4.  <  2  R.  S.  44,  ^35,  4th  ed.  «  1  R.  S.  636,  ^3. 

2  R.  S.  38.^4,  4th  cd.  Laws  1842,  ch.  135,  ^20.  2  R.  S.  51,  ^3,  4th  ed. 


>  1  R.  S.  624 
2  R.  S.  38 


406  DUTIES  OF  CONSTARLES  IN  SPECIAL  PROCEEDINGS. 

and  shall  issue  a  venire  t«_>  any  conslaMe,  to  summon  a  jury  of  twelve 
persons,  com[>elenl  to  serve  on  juries,  to  appear  at  the  said  time  and 
place,  for  the  purpose  of  trying  the  said  fact.' 

5  1007.  Such  jury  shall  be  summoned,  returned,  and  six  of  iheni 
shall  be  balloted  for  by  such  justice,  and  shall  be  sworn  well  and  truly 
to  try  the  fact  of  the  alleged  drimkeimess,  in  the  same  manner  as  lor 
the  trial  of  issues  in  suits  brought  before  a  justice  of  the  peace  ;  and 
witnesses  shall  be  summoned,  and  their  attendance  and  testimony  en- 
forced, and  they  shall  be  sworn  and  examined  before  the  said  jury  in 
the  like  manner.' 

,3  10(58.  If  a  judgment  is  rendered  for  either  party  for  the  costs 
of  the  proceeding,  the  justice  shall  issue  execution  thereon,  and  the 
constable  to  whom  the  same  is  directed  and  delivered,  shall  execute 
the  same  in  the  like  manner  as  executions  in  civil  cases.' 

4.    IDLE    AND    TRUANT    CllILDRilX. 

^  10G9.  It  shall  be  the  duty  of  all  police  officers  and  constables,  who 
shall  find  any  child  between  the  ages  of  five  and  fourteen  years,  hav- 
ing sufficient  bodily  health  and  mental  capacity  to  attend  the  public 
schools,  found  wandering  in  the  streets  or  lanes  of  any  city  or  incorpo- 
rated village,  idle  aud  truant,  without  any  lawful  occupation,  to  make 
comj)laint  to  a  justice  of  the  peace,  public  magistrate,  or  justice  of  the 
district  court  in  the  city  of  New  York,  to  the  end  that  such  child  may 
be  proceeded  against  according  to  the  provisions  of  the  said  act/ 
And  any  such  officer  shall  execute  the  warrant  of  such  magistrate 
requiring  him  to  bring  such  child  before  the  magistrate  issuing  the 
same,  for  examination ;  and  also  any  warrant  for  commitment  he  may 
make  for  confining  such  child  in  any  place  that  may  be  provided  for 
the  reception  of  such  idle  and  truant  children  in  such  city  or  village. 

5.    HAWKERS    AND    PEDLARS. 

<5  1070.  Every  person  trading  as  a  hawker  and  jiedler,  who  shall 
refuse  to  produce  a  license  as  a  hawker  and  pedler  to  any  officer  or 
citi/en  who  shall  demand  the  same,  shall,  for  each  oflence.  forfeit  the 
sum  of  ten  dollars,  to  the  overseers  of  the  poor  of  the  town  in  which 
the  demand  shall  be  made,  for  the  use  of  the  poor  therein  ;  and  any 
such  offii-nder,  who,  after  notice,  shall  refuse  or  neglect  to  pay  the 
above  jKinally,  shall  be  committed  by  the  justice   before  whom  the 

I  1  R  H.  037,  (,4.  »  1  R.  8.  637,  ^<>8,9.  *  Laws  1863,  cb.  186,  ^^1,  5. 

•J  K.  H,  61,  (,4,  4l^.  ed,  2  U.  8.  62,  ^H,  V,  4lh  cd. 

a  1  H.  8.  G37,  ^6. 

2  B.  8.  62,  <^,  4lb  od. 


DUTIRS  OF  CONSTABLES  IN  SPECIAL  IMlOCHHDINdS.  407 

conviction  shall  he  had,  to  the  jail  of  the  county  in  which  the  ofTence 
shall  have  been  committed,  for  the  term  of  one  month.' 

(5  107L  Any  citizen  may  apprehend  and  detain  any  person  who 
shall  be  found  trading  as  a  hawker  or  pedier,  without  license,  or  con- 
trary to  the  terms  of  his  license,  or  who  shall  refuse  to  produce  his 
license  in  violation  of  the  statute ;  and  may  convey  the  offender 
before  any  justice  of  the  peace  in  the  town  or  county  in  which  he 
shall  be  apprehended.* 

5  107'^.  It  shall  be  the  duty  of  such  justice,  if  sufTicient  license  to 
authorize  such  trading  be  not  produced  to  him,  and  the  fact  of  trading 
be  proved  to  him,  either  by  the  confession  of  the  person  so  apprehend- 
ed, or  the  oath  of  competent  witnesses,  to  convict  the  offender  of  such 
ofl'ences  as  shall  be  so  confessed  or  proved ;  and  to  fssue  his  warrant 
on  each  conviction,  directed  to  some  constable  of  the  county  in  which 
the  conviction  shall  be  had,  commanding  such  constable  to  cause  the 
sum  of  twenty-five  dollars,  with  costs,  not  to  exceed  five  dollars,  to  be 
forthwith  levied  by  distress  and  sale,  at  public  vendue,  of  the  goods, 
wares  and  merchandize  of  the  oflender.  The  moneys  collected  on 
such  warrant,  exclusive  of  the  costs,  shall  be  paid  by  the  justice  to  the 
overseers  of  the  poor  of  the  town  in  which  the  offence  shall  have  been 
committed.^  The  manner  of  making  the  distress  and  sale  has  already 
been  pointed  out.* 

^  1073.  No  costs  shall  be  allowed  to  the  defendant  in  any  such 
case,  if  it  shall  appear  that  before  the  commencement  of  the  prosecu- 
tion, such  defendant  had  refused  to  produce  his  license,  or  to  disclose 
his  name  when  lawfully  required  ;  nor  in  such  case  shall  the  defendant 
be  entitled  to  maintain  any  action  against  the  person  prosecuting  him, 
or  the  constable,  or  other  persons  by  whom  he  may  have  been  appre- 
hended, or  the  justice  issuing  any  warrant  or  other  process  against 
him,  or  before  whom  he  may  have  been  tried,  for  any  of  their  acts  in 
so  prosecuting,  apprehending  or  trying  him.* 

6.     UNDER    THE    HIGHWAY    LAWS. 

^  1074.  The  justice  to  whom  any  complaint  shall  be  made  by  any 
overseer  of  highways  of  bis  town,  that  any  person  has  incurred  any 
penalty  under  the  highway  laws  of  this  state,  shall  forthwith  issue  a 
summons  directed  to  any  constable  of  the  town,  requiring  him  to  sum- 
mon such  delinquent,  to  appear  forthwith  before  such  justice,  at  some 
place  to  be  specified  in  the  summons,  to  show  cause  why  he  should  not 

>  1 R.  S.  576,  ^7.  » 1  R.  8.  576,  ^9.  •  1  R.  S.  578,  $10. 

Id.  1081,  <>7,  4th  ed.  Id.  1081,  $9,  4th  ed.  Id.  1081,  <>10,  4th  cd. 

» 1  R.  S.  576,  $8.  <  Autc,  V^718,  &c. 

Id.  1081,  <)S,  4th  ed. 


408  DUTIES  OF  CONSTABLKS  IN  SPECIAL  PROCEEDINGS. 

be  fined  according  lo  law  for  such  refusal  or  neglect ;  such  summons 
shall  be  served  |>ersonally,  or  by  leaving  a  copy  at  his  personal  abode,' 
Dut  as  the  proceedings  are  summary,  the  ofTn-er  should  use  reasonable 
diligence  to  fiml  the  person  proceeded  against,  in  order  lo  make  personal 
service  if  possible.  If  the  delinquent  is  a  cori)oration,  the  summons 
may  be  scr\*ed  in  the  manner  provided  by  law  for  the  service  of  writs 
or  summons  issuing  nut  of  courts  of  record  against  corporations.' 

5  1075.  If  uj)on  the  return  of  such  summons,  no  sullicient  cause 
shall  be  shown  lo  the  contrary,  the  justice  shall  impose  the  proi)er 
fine,  and  shall  forthwith  issue  a  warrant  under  his  hand  and  seal, 
directed  to  any  constable  of  the  town  where  such  deliiKjuent  shall 
reside,  commanding  him  to  levy  such  fine,  with  the  costs  of  the  proceed- 
ing, of  the  goods  and  chattels  of  such  delinquent.'  The  constable  to 
whom  such  warrant  shall  be  directed,  shall  forthwith  (tolled  the  mo- 
neys therein  mentioned.  The  proceedings  on  the  warrant  are  as  sum- 
mary as  on  the  summons,  and  no  property  is  exempt  from  levy  and 
sale  as  in  the  case  of  executions  in  civil  actions,  but  the  goods  should 
be  advertised  and  sold  in  the  same  manner  as  on  executions  in  civil  ac- 
tions. If  the  warrant  is  against  an  individual,  the  constable  shall  pay 
the  fine,  when  collected,  lo  the  justice  who  issued  the  warrant  ;*  but  if 
it  be  against  a  corporation,  it  shall  be  paid  over  to  the  commissioner  of 
highways  of  the  town,  by  the  constable  collecting  the  same.' 

7.    SUMMONING    JURIES    TO  ASSESS    DAMAGES)    ON    OPENING   illGUWAYS. 

5  107G.  When  a  jury  shall  be  required  for  the  purpose  of  assessing 
the  damages  of  any  party  on  opening  a  highway,  and  a  list  of  the 
names  of  the  requisite  number  of  jurors  shall  have  been  made  and 
certified,  and  delivered  to  a  justice  of  the  peace  of  the  town  wherein 
the  damages  are  to  be  assessed;  it  shall  be  the  duty  of  such  justice 
forthwith  lo  issue  a  sunmions  to  one  of  the  constables  of  his  town,  di- 
recting him  to  summon  the  persons  named  in  said  certificate,  and  shall 
specify  a  time  and  place  in  said  summons,  at  which  the  persons  to  be 
summoned  [shall  [meet,  but  no  meeting  of  such  persons  shall  he  had 
within  twenty  days  from  the  filing  the  assessment  of  damages  in  the 
town  clerk's  office  by  the  commissioner  or  commissioners  of  high- 
ways.* The  service  of  such  summons  on  such  jurors  should  be  per- 
sonal, if  they  can  be  found  ;  but  if  not,  then  the  same  may  l>e  made  by 
leaving  a   notice  of  the  selection  of  such   person,  and  the  time  and 

>  1  R.  8.  510.  (,i?..  »  1  R.  8.  610,  ^43.  »  1  R.  8.  1034,  ^30. 

M,  10?"  •  '  '    <•»   H.  1,1.  i();{H,  <Ji:i,  4th  cd.  Lawn  1837.  cJi  431,  <)i. 

«  1  K.  H                       lUi  .  .1.  «  1  H.  H  r>l{,  U4.  •  1  K    H   lOI.'l.  <^),  4t»i  cd. 

Laws  1                >  ■i.<>i.  Id.  103«.  ^64,  4Ui  cd.  Lrtw.i  1H47,  cb.  466,  ^6. 

Ante,  V^oO,  rab.  1. 


DUTIES  OF  CONSTABLES  IN  SPECIAL  I'ROCEEDINGS.  409 

place,  and  tlie  puri^ose  for  which  he  is  required  to  altoiid,  at  his  place 
of  residence,  with  some  member  of  his  family  of  suitable  age  and  dis- 
cretion. 

8.    ENCROACHMENTS    UPON    IIKJIIUAYS, 

^  1077.  If  the  occupant  of  land,  to  whom  notice  is  given  that  his 
fences  encroach  upon  the  highway,  shall  within  five  days  deny  such 
encroachment,  the  commissioners  of  highways,  or  some  one  of  them, 
shall  apply  to  any  justice  of  the  peace  of  the  county  for  a  precept, 
directed  to  any  constable  of  the  town,  to  summon  twelve  freeholders 
thereof,  to  meet  at  a  certain  day  and  place  to  be  specified  in  such  pre- 
cept, and  not  less  than  four  days  after  the  issuing  thereof,  to  inquire  into 
the  premises.' 

^  1078.  The  jurors  must  not  only  be  freeholders  and  residents  of 
the  town,  but  they  should  not  in  any  wise  I)e  interested  in  thecjuestion, 
nor  of  kin  to  the  party,  and  neither  prejudiced  for  or  against  him. 

(5  1070.  It  is  the  duty  of  the  constable  to  select  the  jurors,  and  the 
justice  issuing  the  precejtt  has  no  power  to  designate  who  shall  be 
selected  and  who  not.  And  it  is  irregular  for  him  to  annex  the 
names  of  the  jurors  to  be  summoned  by  the  constable,  to  such  precept ; 
but  if  he  does  so,  and  the  persons  so  selected  by  him  are  not  objected 
to,  the  irregularity  will  be  deemed  waived.'*  Nor  can  the  justice  pass 
upon  the  competency  of  the  jurors  summoned.  All  his  powers  are 
exhausted  in  issuing  the  precept  and  swearing  the  jurors  and  wit- 
nesses.^ 

^  1080.  The  constable  to  whom  such  precept  shall  be  directed,  shall 
give  at  least  three  days'  notice  to  the  commissioners  of  highways  of 
the  town,  and  to  the  occupant  of  the  land,  of  the  time  and  place  at 
which  such  freeholders  are  to  meet.^  Such  notice  may  be  given  verb- 
ally, or  by  writing. 

^  1081.  If  the  jury  find  that  any  encroachment  has  been  made,  the 
occupant  shall  pay  the  costs  of  such  inquiry  ;  and  if  the  same  shall  not 
be  paid  within  ten  days,  the  justice  shall  issue  a  warrant  for  the  collec- 
tion thereof,  in  the  manner  i)rovided  in  the  case  of  one  refusing  to  per- 
form highway  labor.* 

9,    DR.MMNG    SWAMPS. 

5  1082.  The  justice  of  the  peace  to  whom  application  shall  be  made 
for  a  summons  to  summon  a  jury,  under  the  statutory  proceedings  for 

»  1  R.  S.  522,  ^105.  3  3  Wend.  468.  s  i  R.  S.  522,  $107. 

Id.  1050,  f>123.  4 1  R.  s.  522,  (^106.  Id.  1051,  <;125,  4th  ed. 

L.-wvs  1840,  cb.  300,  $2.           Id.  1050,  <;123,  4th  ed.  Auto,  %l01o,  &c. 
a  2  Hill,  472.                                Laws  184U,  ch.  300.  $2. 

53 


410  DUTIES  OF  CONSTABLES  IN  SPECIAL  PROCEEDINGS. 

the  draining  of  swamps,  mnrsiies  and  utlicr  low  lands,  by  any  i>erson 
entitled  thereto,  shall  thereupon  issue  a  summons  directed  to  any  con- 
stable of  the  town  where  the  lands  are,  and  in  which  the  jiisti(!e  resides, 
retjuiring  him  to  summon  twelve  reputalile  frci'ludders,  who  are  not  in- 
terested in  the  said  lands,  nor  in  any  of  them,  nor  in  any  wise  of  kin  to 
either  of  the  parties,  to  hi' and  apjH-ar  on  the  premises  at  a  certain  lime 
to  he  sj>eoificd  in  such  summons,  not  less  than  ten,  nor  more  than  twen- 
ty days  from  the  dale  thereof.  The  summons  shall  also  direct  the 
constable  to  give  at  least  six  days'  notice  to  the  owner  of  such  lands, 
of  the  time  at  which  such  jury  is  to  aj)pear.' 

^  1083.  The  constable  to  whom  such  summons  shall  be  delivered 
shall  execute  the  same  by  summoning  such  jurors  in  the  same  manner 
and  with  the  like  authority,  as  upon  venires  issued  in  causes  pending 
before  justices  of  the  peace,  and  shall  in  like  manner  make  return 
thereof,  and  of  the  fart  of  his  having  given  the  notice  therein  re- 
quired.' 

10.  .«r..\ncii   WAUK.WT  fob  (;ood.^  pawned. 

^  1081.  Whenever  any  ]>erson  shall  make  oath  before  any  justice  of 
the  peace,  police  justice  or  assistant  justice,  that  any  property  belong- 
ing to  him  has  been  embezzled  or  taken  without  his  consent,  and  that 
he  has  reason  to  believe  and  suspect,  and  does  suspect,  that  such  prop- 
erty has  been  pledged  with  any  pawnbroker,  such  justice,  if  satisfied 
of  the  correctness  of  such  susj^icions,  shall  issue  his  warrant,  directed 
to  any  constable  of  the  city  or  i>lace,  commanding  him  to  search  for 
the  pro|>erty  so  alleged  to  have  been  embezzled  or  taken,  and  to  seize 
and  bring  the  same  before  such  justice.' 

^  1085.  The  constable  to  whom  any  such  warrant  shall  be  directed 
and  delivered,  shall  have  the  same  j)Ower  to  execute  the  same,  and 
sJkiU  proceed  in  the  same  manner  as  in  the  case  of  a  search  warrant, 
issued  upon  a  charge  of  larceny.*  And  when  the  property  is  seized, 
he  shall  bring  the  same  forthwith  before  the  olRcer  issuing  the  war- 
rant, to  1)6  disj)osc(l  of  by  him. 

11.    I'UOCr.riri    OF    COURTS    .MAUTIAL. 

<J  \0^n.  In  addition  to  the  powers  conferred  upon  constables  in  the 
execution  of  prr^cess  of  courts  martial,  and  courts  of  incjuiry,  in  the 
cases  where  the  same  powers  are  to  be  executed  by  sheriffs,*  it  is  de- 
clared, that  every  court  martial,  or  court  of  impiiry,  or  the   president 

M  7M)  V-.  »'*•  *■•<••  '-'  "  •'^  >1".  ""^l".  *'''  <*'• 

t2V    ^   '  '-  ■''  *  1  "  •'^  711,^11. 

I                    ;  ln-.l.  -2  II   S    117,  vlI,4lhod. 

A,.        ,,      ,  .,  fltC.  \uU:,</,l'J,  &.C. 


ACTIONS  AGAINST  CONSTABLHS.  411 

thereof,  shall  have  power  u\)nu  i»rop(M-  prortf,  to  issue  an  attachment 
to  roinpcl  the  attendance  of  any  defaullinL,'  witness.  Kvery  such 
attacinuent  shall  be  executed  in  the  same  manner  as  a  warrant,  and 
by  any  oflicer  authorized  to  execute  warrants,  and  the  fees  of  the  offi- 
cers serving  the  same,  shall  be  jiaid  by  the  person  against  whom  the 
same  shall  have  been  issued,  unless  he  shall  show  reasonable  cause,  to 
the  satisfaction  of  such  court,  for  his  omission  to  attend  ;  in  which  case 
the  party  requiring  such  attachment  shall  pay  the  costs  of  such  attafh- 
nient ;  such  costs  shall  be  ascertained  by  the  court,  who  may  there- 
upon issue  an  execution  for  the  collection  against  the  persons  liable  to 
I)ay  the  same,  and  which  may  be  collected  as  other  executions  are  col- 
lected, and  by  any  officer  authorized  to  collect  executions  issued  from 
courts  of  justice.' 

12.    WHEN    SUMMONED    TO     ATTEND    COl'RTS. 

^  1087.  The  constables  summoned  by  the  sheriff  to  attend  any 
term  of  the  court  appeals,  or  of  the  supreme  court,  or  any  circuit  court, 
court  of  oyer  and  terminer,  or  court  of  sessions,  or  county  court,  or 
any  other  court  which  shall  be  held  in  his  county,  shall  attend  thereat ; 
ami  when  the  court  is  a  circuit  court,  sittings,  court  of  oyer  and  termi- 
ner, county  court,  or  court  of  sessions,  it  is  declared  that  every 
marshal  or  constable  so  summoned,  shall  attend  the  sitting  of  such 
court,  upon  pain  of  being  fined  for  every  day's  neglect,  a  sum  not 
exceeding  five  dollars.* 

^  1088.  It  is  the  duty  of  every  such  constable  so  summoned  to 
attend  any  such  court,  to  keep  the  court  house  in  order  and  to  obey 
the  orders  and  directions  of  the  court,  and  of  the  sheriff,  and  to  act 
act  as  crier  of  such  court,  if  no  crier  is  appointed  therefor.' 

CHAPTER  VIII. 
ACTIONS  AG.UXST  COXST.UJLES. 

^  1089.  The  cases  in  which  constables  are  criminally  liable  for  any 
act,  or  neglect  of  duty  in  their  ofiice,  have  already  been  referred  to 
under  the  appropriate  heads,  and  will  not  be  repeated. 

5  1090.  It  may  be  said  generally,  that  constables  are  liable  to  an 
action  at  the  suit  of  the  party  aggrieved,  in  the  same  cases,  and  under 
the  same  circumstances,  as  sheriffs  are  liable  for  any  wilful  or  corrupt 

»  Laws  1853,  p.  1062,  ^^42,43.  3  2R.  S.  197,  ^7. 

8  2  R.  S.  197,  ^7.  Id.  3G2,  *>4,  4th  cd. 

Id.  362,  ()4,  4th  ed.  2  R.  S.  476,  (^73,  4lh  ed. 

2  R.  S.  280,  <>83-86.  Laws  1847,  ch.  470,  ^42. 

Id,  476,  ^()70-72. 


•112  ACTIONS  \r,\\\^T  CONSTAHLKS. 

tnuission  lo  discharge  any  oincial  duty.  They  are  so  hahle,  where 
ihey  refuse  or  neglect  lo  make  due  service  of  a  summons,  or  other 
process  ;  or  to  nmke  due  return  thereof.  So  where  they  refuse  or 
neglect  to  arrest  the  defendant,  or  seize  liis  j)roperty  ui)on  attachn)ent 
or  execution  duly  issued  and  delivered  to  them  for  execution  ;  and  for 
releasing  a  sullicienl  levy  upon  the  defendant's  property,  and  arresting 
him,  whereby  the  debt  is  lost.*  And  if  moneys  be  collected  by  a 
constable  ujK^n  on  execution,  and  are  not  paid  over  by  him  according  to 
law.  an  action  of  assumpsit  may  be  maintaint-il  by  the  party  entitled  to 
such  moneys,  in  his  own  name,  upon  the  instrument  of  security  given 
by  such  constable  and  his  sureties;  and  in  such  suit,  the  amount  so  col- 
lected, with  interest  from  the  time  of  collection  shall  be  recovered. 
Execution  shall  be  immediately  issued  upon  the  judgment  in  such  suit." 
But  he  will  not  be  so  liable  where  a  recovery  has  been  had  against 
him  for  selling  the  projierty  out  of  which  the  money  was  made,  when 
such  recovery  is  equal  to  the  amount  of  the  execution  ;  and  it  makes 
no  diflerence,  that  the  plaintiff  had  indemnified  the  constable  against 
the  levy.'  So  he  is  liable  to  a  plainlitf  in  a  senior  execution,  for  pay- 
ing over  money,  on  a  junior  execution.*  If  a  constable  neglect  to 
return  an  execution  within  five  days  after  the  return  day  thereof,  the 
party  in  whose  favor  the  same  was  issued,  may  maintain  an  action  of 
debt  against  such  constable,  and  shall  recover  therein  the  amount  of 
the  execution,  with  interest  from  the  time  of  the  rendition  of  the  judg- 
ment upon  which  the  same  was  issued  ;  and  if  a  judgment  he  obtained 
in  such  suit  against  the  constable,  execution  shall  immediately  issue 
thereon.'  And  it  will  not  be  necessary  to  show  moneys  collected  by 
him.  The  constable  becomes  liable  in  such  case  by  his  mere  neglect 
to  return  the  execution  alone.*  But  a  constable  is  not  liable  in  a  case 
where  the  plaintiff  has  directed  a  renewal  of  the  execution.^  The 
constable  is  also  liable  for  an  escajie.  and  although  he  has  the  whole 
time  the  execution  has  to  run  to  make  an  arrest,  yet  if  he  arrest  the 
defendant,  before  the  expiration  of  such  time,  and  suffers  him  to  go  at 
large,  it  is  an  escaj»e,  though  he  has  him  at  the  return  of  the  writ.' 
And  so  if  he  discharges  one  by  order  ol  the  justice  who  issued  the 
execution,  he  is  liable  for  an  escape,  unless  the  justice  had  special 
authority  from  the  plaintiff  to  discharge  him.*  But  it  will  be  a  good 
defence  lolhe  constable  if  the  process  is  void  ;  or  if  the  defendant  in  the 
process  is  exempt  from  arrest.'"     He  is  also  liable  for  a  false  return." 

I  7  Wend.  I'M.  •  0  Woml.  288.  »  9  John.  HC. 

I  2  B.  8.  264,  U03.  10"       370.  'o  llJ..lin  4.1.1. 

Id.  44^1,  (,\*fi,iih  c<l.  '^\  J(,hd.  74.  >'  14  J<.».n.  481. 

»  21  W.rtd.  2*V4.  »  0  C«jw.  %9.  3  Wciid.  202. 

«  rjJ'.lin.  162.  •  13  John.  608. 
»  2  E.  .H.  2&3,  <>169. 

Id.  44i»,  <>142,4lh«d. 


ACTIONS  AGAINST  CONSTABLES.  /J  13 

§  1091.  Constables,  like  sherilVs,  are  also  liable  to  the  j)arty  aggrieved 
for  any  wrongful  interference  with  the  rights,  j)roj)erty,  or  liberties  of 
another,  as  where  lie  arrests  or  seizes  the  goods  of  the  wrong  jiarty  ; 
or  for  executing  process,  void  upon  its  face  ;  and  he  cannot  defend  a 
trespass  of  that  character  on  the  ground  that  he  is  a  minor.'  So  he  is 
liable  for  the  execution  of  proi'ess  in  an  unwarrantable  nnanner,  with 
intent  to  vex,  harrass,  and  oppress  the  party.*  But  a  constable  is  not 
liable  to  the  jjarty  where  lie  agreed  that  if  the  defendant  would  turn 
out  j)roj)erty  on  the  exetuition,  he  would  not  sell  under  thirty  days, 
should  he  sell  before  that  time.'  It  is  an  agreement  without  considera- 
tion and  is  void.  So  he  will  be  liable,  for  arresting  the  defendant 
before  seeking  for  goods,  if  he  could  with  reasonable  diligence  have 
found  property.*  But  in  such  ca.se  the  party  complaining  must  show 
that  there  was  property  clearly  subject  to  the  execution,  and  that  the 
constable  had  due  notice  of  it.^  And  so,  too,  he  w^ill  be  liable  to  an  action 
for  false  imprisonment,  for  detaining  a  defendant  in  a  civil  action, 
more  than  twelve  hours  after  arrest,  and  before  the  commencment  of 
the  trial.*  And  he  will  also  be  liable  if  he  executes,  or  attempts  to 
execute  process,  requiring  the  seizure  of  the  defendant  or  his  goods, 
after  the  return  day  of  such  ])rocess. 

§  1092.  The  liability  of  the  sureties  of  the  constable,  upon  his  bond, 
is  co-extensive  with  his  own  liability  to  the  party  aggrieved.  They 
are  liable  for  any  neglect  of  duty  on  an  execution,  and  for  not  paying 
over  money  collected  thereon,'^  whether  it  was  received  before  or  after 
the  termination  of  his  term  of  office.^  So  too,  his  surety  are  also  liable 
in  case  of  his  neglect  to  return  an  execution  within  the  time  limited  by 
law,  and  it  makes  no  difference  that  no  money  was  actually  collected  by 
him  on  the  execution.'  Any  person  to  whom  the  constable  has  become 
responsible  within  the  condition  of  the  bond,  may  commence  suit  thereon, 
without  previous  leave  being  granted,  in  his  own  name  ;'°  or  if  the  bond 
be  to  the  people,  then  he  may  so  commence  such  action  for  his  own  ben- 
efit, in  the  name  of  the  people."  In  an  action  against  a  constable  and 
his  surety,  they  will  not  be  allowed  to  say  that  the  execution  was  issued 
without  authority,  unless  it  was  absolutely  void."*  Nor  can  the  surety 
object  that  the  bond  was  not  filed  within  the  time  required  by  statute  ; 
nor  that  it  was  not  under  seal ;  nor  in  the  form  required  by  statute, '^  if 
it  contains   the  substance  thereof;  nor  that  the  sureties  had  not  been 

»  23  Wend.  490.  '  1  R.  S.  346,  \,21.  «  10  Wend.  370. 

«  6  John.  125.                                Id.  665,  ^43,  4th  cd.  i"  2  Wend.  281. 

3  2  John.  193.                               2  R.  S.  254,  ^163.  "  9  Wend.  233. 

*  4  Wend.  639.                              Id.  449,  ^146, 4th  ed.  2     "       281. 
«  12  Wend.  145.  8  2  R.  S.  274,  f>286.  u  9  Wend.  233. 

•  1  Cow.  Tr.  588.                        Id.  469,  ^204,  4th  ed.  ««  2  Wend.  616. 

10  Wend.  516. 


414  ACTIONS  AdAlNST  CONSTAIILRS. 

approved  b)*  the  clerk  or  supervisor  of  the  town.'  Tlie  sureties  of  a 
ounstaMe  will  not  be  ilischar^'ed  by  the  plaintill*  assenting,  without 
consideration,  to  a  temporary  delay  by  the  constable  in  paying  over 
moneys  collecte<l  on  the  execution,  there  l»einLj  no  evidence  that  he 
otFered  to  pay,  or  that  the  i>lainlitr  loaned  it  to  hin).' 

<5  1093.  Actions  against  constables  and  their  sureties  must  be  com- 
menced within  the  same  time  as  those  ai^ainst  the  sherifl"  for  like 
causes.*  And  the  proof  necessary  to  suj^port  an  action,  or  maintain 
the  defence  in  such  action,  will  be  the  same  as  in  actions  against 
sherifTs. 

I  12  Woml.  30S.  »  Auto,  V)S52,  &c 

«  i  Dcuio,  65.  Code,  y>02,  9-J. 


FEES  OF  SHERIFFS,  COllONERS  ANI)  CONSTABLES. 


CHAPTER  I. 

OF  THE  FEES  OF  OFFICERS  GENERALLY. 

^  1094.  As  a  general  rule,  sherifls,  coroners  and  constables  are  en- 
titled to  compensation  for  any  service  they  or  either  of  them  may  be 
recjuired  to  perform,  by  virtue  of  their  respective  offices.  In  some 
cases,  however,  duties  are  imposed  by  law  on  them,  which  they  are 
obliged  to  discharge  without  compensation.  Thus,  it  is  the  duty  of 
sherifls  to  attend  the  sittings  of  courts  of  record  held  within  their 
county,  for  which  they  are  not  entitled  to  compensation,*  except  for 
attendance  upon  the  Recorder's  Court  of  the  city  of  Utica,  and  the 
City  Court  of  the  city  of  Brooklyn.'  The  cases,  however,  are  few, 
where  any  officer  is  required  to  perform  services  without  being 
entitled  to  ask  and  receive  some  compensation  for  such  services. 

§  1095.  It  is  declared  that  no  judge,  justice,  sherifls,  or  other  officer 
whatsoever,  or  other  person  to  whom  any  fees  or  compensation  shall 
be  allowed  by  law  for  any  service,  shall  take  or  receive  any  other  or 
greater  fee  or  reward  for  such  service,  but  such  as  is  or  shall  be  al- 
lowed by  the  laws  of  this  state.^  No  fee  or  compensation  allowed  by 
law,  shall  be  demanded  or  received  by  any  officer  or  i>erson,  for  any 
service,  unless  such  service  was  actually  rendered  by  him.  But  this 
shall  not  prevent  any  officer  from  demanding  any  fee  allowed  for  any 
service,  of  which  he  is  entitled  by  law  to  require  the  payment,  previ- 
ous to  rendering  such  service.*  A  violation  of  the  foregoing  provisions 
shall  be  deemed  a  misdemeanor ;  and  the  person  guilty  thereof  shall 
be  liable  to  the  party  aggrieved,  for  treble  the  damages  sustained  by 
him.'  And  it  shall  be  the  duty  of  every  court  at  which  a  grand  jury 
shall  be  summoned,  to  charge  such  jury  specially  to  inquire  into  any 
violations  of  law  by  public  officers,  in  demanding,  charging  or  receiv- 
ing fees  to  which  they  are  not  entitled  by  law/     The  provisions  of 

I  2  Hill,  411.  «  2  R.  S.  G50,  ^^G.                     6  1  R.  S.  830,  (;8,  4th  cd. 

s  Ante  \lb2  M.  830,  AG,  4th  cd.                   Laws  1847,  cb.  455,  ^17. 

»  2  R.  S.  650,  V>6.  5  2  R.  S.  Gol,  ^7. 

Id.  839,  v5,  4th  ed.  Id.  830,  <>7,  4th  cd. 


416  FEES  OF  SHERIFFS. 

law  j)rohibiling  the  taking  of  any  fees  for  services  in  civil  cases,  other 
than  such  as  are  allowed  l)y  statute,  shall  apply  to  the  taking  of  fees 
for  services  in  criminal  cases  beyond  tlic  am<»un(  allowed  hy  law  for  such 
services.'  Though  an  action  may  be  maintained  against  the  sheritT 
for  any  act  of  extortion,  whether  done  by  himself  or  by  his  deputy, 
yet  no  indictment  will  lie  against  him  for  the  taking  illegal  fees  by  a 
deputy.*  The  taxation  of  a  bill  of  costs  is  a  judicial  act,  and  such 
taxation  is  conclusive,  and  cannot  be  attacked  in  a  collateral  action, 
whether  the  charges  allowed  l)y  the  taxing  officer  are  authorized  by 
the  fee  bill  or  not.' 

^  1090.  A  ministerial  officer  whose  fees  for  any  particular  service 
are  fixed  by  law,  cannot  maintain  an  action  on  a  promise  of  extra  com- 
pensation for  extra  services  in  the  execution  of  process,  though  such 
service  be  beyond  what  could  be  legally  required  of  him.* 

^  1097.  But  where  no  fee  is  prescribed  by  law,  for  any  service 
which  the  ollicer  is  required  to  perform  ;  and  he  is  not  in  terms  required 
to  perform  such  duty  for  nothing,  he  is  entitled  to  ask  and  receive  a 
reasonable  compensation  for  his  services.'  And  where  a  reward  is 
offered  for  the  apprehension  of  one  who  has  perpetrated  a  crime  ;  or 
for  the  discovery  of  stolen  or  embezzled  goods,  it  is  not  against  the 
policy  of  the  law  or  incompatible  with  the  duties  of  a  public  officer, 
who  discovers  the  criminal  or  the  pro})erty,  without  process  in  his 
hands  for  that  purpose,  that  he  should  share  in  the  reward.* 

CHAPTER  II. 

FEES  OF  SHERIFFS. 
1.  FOR  SERVICES  RENDERED  THE  STATE. 

^  1098.  The  Revised  Statutes  provide  that  whenever  a  sheriff  shall 
be  required  by  any  statutory  i)rovision,  to  perform  any  service  in 
behalf  of  the  people  of  this  state,  and  for  their  benefit,  which  shall  not 
be  made  chargeable  by  law  to  his  county,  or  to  some  officer  or  other 
person,  his  account  for  such  services,  shall  be  audited  by  the  comptrol- 
ler, and  be  paid  out  of  the  treasury.^ 

^  1099.  The  treasurer  of  this  state  shall  pay,  on  the  warrant  of  the 
comptroller,  to  the  sheriffs  of  the  several  counties  in  this  state,  such 
sum  or  sums  of  money  as  now  are,  or  hereafter  may  be  due  to  them 

I  2  R.  H.  703.  (,\1.  *  ir,  Wend,  4  J.  5  'j  j„hi(.  .TJH. 

U.{f-i^,</2i^,ilhi:i\.  '.)      "       '202.  12  Wcml.  267. 

2  iK-nio,  42.  Chiltv  on  Voui.  682.  2  Doiii..,  -n. 

»  AriU-,  (>«29.  18  J..J1I1.  242.  2  Han.lf.  7 12. 

7  John.  86.  2  Cow.  033.  •  2  E<1«.  Cli.  R   00. 

» 2  IX-nio  26.  '  1  R.  H.  ;wt,  (^IQ. 

Id.  Ol>7,  <)Vy.l,  4tb  cd. 


I'EKH  OF  S  [I  Kill  ITS.  417 

respectively,  for  their  yervict'S  and  cxj)en.se.s  in  transportin'^'  ronvicts 
to  either  of  the  state  prit-ons.*  Whenever  any  such  shcrilf  shall  |)ro- 
duce  to  the  comptroller  a  statement  of  his  account  for  such  services 
and  expenses,  certified  hy  the  •■lerk  or  agent  of  such  i)rison  to  he  cor- 
rect, and  tiiat  there  are  no  funds  at  said  prisons  applicable  to  the 
payment  thereof,  it  shall  be  the  duty  of  the  comptroller  to  draw  his 
warrant  on  the  treasurer  in  favor  of  such  shcrifV  for  the  amount  of  his 
account."  And  it  is  farther  provided,  that  the  account  of  any  sherifT 
for  transporting  convicts  to  the  state  prisons,  certified  and  attested  as 
provided  by  law,^  shall  be  audited  by  the  comptroller  and  paid  out  of 
the  treasury,  unless  otherwise  provided.* 

§  1090.  The  fees  and  compensation  of  sheriffs  for  conveying  con- 
victs to  the  state  prisons  or  houses  of  refuge,  have  been  fixed  as  follows : 
For  conveying  a  single  convict  to  the  state  prison  or  houses  of  refuge, 
for  each  mile  from  the  county  prison  from  whic.h  such  convict  shall  be 
conveyed,  §0  35 

For  conveying  two  convicts  for  each  mile  as  aforesaid,  15 

For         "  three         "  "  "  50 

For         "  four  "  "  "  55 

For         "  five  "  "  "  60 

And  for  all  additional  convicts,  such  reasonable  allowance  as  the  comp- 
troller may  think  just,  which  said  allowance,  with  one  dollar  per  day 
for  the  maintenance  of  each  convict  whilst  on  the  way  to  the  state 
prison,  but  not  exceeding  one  dollar  for  every  thirty  miles  travel,  shall 
be  in  full  of  all  charges  and  expenses  in  the  premises.^ 

§  1100.  All  the  convicts  who  shall  be  sentenced  to  imprisonment, 
in  the  same  state  prison,  or  to  the  same  house  of  refuge,  at  one  session 
of  a  criminal  court,  shall  be  transported  at  the  same  time,  unless  said 
court  shall  expressly  direct  otherwise.^ 

^1101.  A  reasonable  compensation  for  making  return  of  convic- 
tions to  the  secretary  of  state. 

^  1102.  When  the  governor  of  this  state,  in  the  exercise  of  the 
authority  conferred  by  the  constitution  of  the  United  States,  or  by  the 
laws  of  this  state,  shall  demand  from  the  governor  of  any  stale  or 
territory  in  the  United  States,  or  from  the  executive  authority  of  any 
foreign  government,  any  fugitive  from  justice,  the  accounts  of  the  per- 
sons employed  by  him  for  that  purpose,  for  their  services,  shall  be 
audited  by  the  comptroller  and  paid  out  cf  the  treasury.'  In  such 
cases,  such  persons  are  usually  allowed  the:/ actual  necessary  expenses 
in  executing  the  requisition  of  the  governor,  and  a  reasonable  per  diem 

>  1  R.  S.  418,  ^25,  4th  cd.  <  2  11.  S.  938,  ()19,  4tli  cd.  s  o  R.  S.  938,  ^20,  4th  od. 

L;uvs  1810,  eh.  25.  ^1.  Laws  1847,  ch.  497,  <)i.            Laws  1847,  ch.  497,  ^. 

3  1  R.  S.  418,  <y2\i,  4th  ed.  s  2  R.  J:?.  'j:38,  ^)17, 4tli  ed.  7  2  R.  S.  748,  ()  Jo. 

Laws  1840,  ch.  25,  <)'2.  Laws  1849,  ch.  123,  <>1.           Id.  931,  ^52, 4th  cd. 


3  Ante,  ^268. 


54 


4 IS  FRKs  OF  smiini'i's. 

rompensf\tion.  When  a  fiinitive  from  justice  from  nnnthor  state  is 
arrested  within  this  state,  all  costs  and  expenses  in  the  ap|ireheiuling, 
securing  and  transmitting  such  fugitive  to  the  slate  or  territory  making 
demand  of  him.  shall  ho  paid  hy  such  state  or  territory.' 

^  1103.  For  executing  any  warrant  to  remove  any  person  from 
lands  belonging  to  the  people  of  this  stale,  or  to  Indians,  such  sum  as 
the  comptroller  shall  audit  and  certify  to  be  a  reasonable  compensa- 
tion ;'  to  be  paid  out  of  the  treasury. 

^  1101.  For  serving  the  comjUroller's  notification  upon  debtors  of 
the  state,  such  amount  as  may  be  audited  by  the  comptroller  and 
which  shall  be  paid  out  of  the  treasury.' 

^  1105.  For  serving  sulipa-nas  of  the  canal  board,  canal  commis- 
sioners, or  canal  appraisers,  ihey  shall  be  paid  by  the  canal  commissioners 
or  commissioners  of  the  canal  fund,  such  sum  therefor  as  may  be 
deemed  just  and  reasonable.* 

2.    FOR    SERVICES    RENDERED    THE    COUNTY. 

*3  110(5.  All  fees  and  accounts  of  magistrates  and  other  ollicers  for 
criminal  proceedings,  including  cases  of  vagrancy,  shall  be  paid  by 
the  several  towns  or  cities  wherein  the  oflence  shall  have  been  com- 
mitted, and  all  accounts  rendered  for  such  proceedings  shall  state 
where  such  oflence  was  committed,  and  the  board  of  supervisors  shall 
assess  such  fees  and  accounts  upon  the  several  towns  or  cities  desig- 
nated by  such  accounts  ;  but  when  any  person  shall  be  bound  over  to 
the  oyer  and  terminer,  or  court  of  sessions,  or  committed  to  jail  to 
await  a  trial  in  either  of  said  courts,  the  costs  of  the  proceedings  had 
before  the  single  magistrate  shall  be  chargeable  upon  the  towns  or 
cities  as  aforesaid,  and  the  costs  of  the  proceedings  h;ul  after  the  person 
shall  have  been  so  bound  over  or  committed,  shall  be  chargeable  to  the 
county  ;  but  nothing  herein  contained  shall  apply  to  cases  of  felonies, 
nor  where  the  proceedings  or  trial  for  the  oflence  shall  be  had  before 
any  court  of  oyer  and  terminer  or  court  of  sessions  of  the  county.' 

J51107.    The   following   are   county   charges.      Where    no   fee   is 
given,  the  compensation  is  to  be  fixed  by  the  board  of  supervisors : 

For  attendance  upon  the  drawing  of  a  grand  jury." 

For  j)reparirjg  statements  of  prisoners  in  jail  for  the  district  attorney. 

For  preparing  calendar  of  prisoners  in  jail   for  courts  of  oyer  and 
terminer  and  sessions.^ 

«  Ante,  ^90.  a  1  R.  fl.  C80,  ^28, 4th  r.l.  ?  J  R.  8.  044,  ^25,  4lli  cd. 
»LM'"''21.                          L.-iwN  1847,  ell.  46G,<;liJ.  AnU',  ^Uifi. 

1  4lh  €•(!.  «  1  R,  H  712,  <>.{,  4tli  vtl.  1  R.  S.  <',;«»,  ^^7. 

I  ■'..'•  I.awi.lH;{I,ch.  320,  <)22.  2  R.  8.  &J,  ^7,  4ili  . .!. 

I  I.  l2>V.n.|.267. 

>  A     -  AnU',  <>16«, 


FKHS  OF  Sf[KRIF-I'S.  419 

For  sum moninfT  each  grand  jury,'  810  00 

In  res[)ect  to  the  lees  of  the  sherill"  of  the  city  and  county  of  New 
York,  for  the  summoning  of  juries,  it  is  provided  that  it  shall  be  the 
duty  of  the  clerk  ol'  every  court  for  which  a  j)nnel  of  grand  or  |i(tit 
jurors  shall  be  summoned  by  the  sherill'  of  the  city  and  county  of  New 
York,  to  notify  tiie  sui)ervisors  of  every  case  in  which  less  than  a 
majority  of  the  persons  named  in  the  panel  siiall  be  returned  as 
j)ersonally  served,  and  the  supervisors  are  hereby  prohibited  Irom 
allowing  or  paying  any  fees  or  charges  to  the  sherifl'  for  serving  any 
of  the  persons  named  in  a  panel  in  relation  to  which  they  shall  be 
so  notified,  or  for  making  any  return  thereto.  Any  clerk  omitting 
to  notify  the  supervisors  as  recjuired  by  this  section,  shall  be  liable  to 
a  penalty  of  one  hundred  dollars  for  every  such  omission,'^  to  be  re- 
covered by  any  person  suing  therefor. 

The  sheriff  ol"  Oswego  county,  for  summoning  grand  and 
petit  juries  for  the  Recorder's  court  of  the  city  of  Oswego,^    82  00 
For  returninL,^  the  precejit  for  the  oyer  and  terminer,  \'2^ 

For  returning  the  jury  lists,  each,  i^i 

For  summoning  constables  to  attend  the  supreme  court,  or 
any  other  court,  for  each  constable/  SO 

For  each  day's  attendance  upon  the  Recorder's  court  of 
the  city  of  Utica,"  and  the  City  court  of  Brooklyn,*  1  23 

For  the  support  of  prisoners  in  jail.^ 

For  every  prisoner  committed  to  prison,^  37^ 

For  every  prisoner  discharged  from  prison,  37^ 

For  removing  convicts  to  the  houses  of  refuge,  the  same  compensa- 
tion as  is  provided  by  law  for  the  transportation  of  convicts  to  the 
state  prison.' 

The  sherill'  of  Albany  county,  for  his  services  as  jailer,  receiving 
and  discharging  prisoners,  and  for  statements  and  certificates  of  con- 
victs, in  lieu  of  fees,  annually,  8500  00 

For  conveying  a  single  convict  to  the  house  of  refuge,  in- 
cluding all  expenses,  25  00 
For  conveying  two,  including  all  expenses,  35  00 
Each  additional  convict,'"  5  00 
For  conveying  convicts  sentenced  at  any  court  in  Albany  or  Onon- 
daf^a  counties,  to  the  j)enilentiaries  of  said  counties  respectively,  one 

1  2  R  S  752   ull.  5  2  R.  S.  403,  p\,  4tli  cd.        »  2  R.  S.  752,  (^11. 

Id  938  <\U,  4th  ed.  L.iws  1844,  ch.  319,  ^8.           Id.  938,  <J17,  4th  ed. 

2  L.ws  1853.  ch.  493,  <;9.  «  2  R.  S.  407,  <>119,  4th  ed.  »  2  R.  S.  701,  ^;18. 

3  2  R  S  411   <\U'2,  4th  cd.  L;i\vs  1849,  ch.  125,  ^14.          Id.  885,  <y2'2,  4th  ed. 
Laws  1848,  cli.  374,  (>11.  "       1850,  ch.  102,  ^7.  i"  Laws  1844,  ch.  80. 

<  2  R.  S.  835,  (321, 4th  cd.        7  l  R.  S.  385,  ^3,  sub.  6. 
Laws  1830,  ch.  300,  <)57.         I-'..  712,  ^3,  sub.  6,  4th  ed. 


.\20  FEES  OF  JrsTk'KS. 

half  ihe  fees  allowetl  by  law  for  Iransporlint?  prisoners  to  llie  state 
prisons  or  houses  of  refiigf,  to  ho  paid  by  the  county  sending'  them,  ex- 
cept where  such  service  is  rendered  by  a  constable  or  onirer  in  attend- 
ance on  nny  court  of  oyer  an<l  terminer,  nnd  general  sessions  lor  the 
city  and  county  of  Albany,  or  the  city  of  Syracuse,  or  the  county  of 
Onondaga,  who  is  paid  by  the  day  for  such  attendance  ;  or  by  any  po- 
lice  constable  of  Syracuse;  in  which  case  only  the  actual  expenses 
incurred  shall  l)c  paid  by  the  sujicrintendonts  of  such  i)enitentiarics.' 
When  the  convict  is  sent  to  either  of  said  j^nitentiaries  from  any 
county  other  than  the  counties  in  which  such  penitentiaries  are,  the 
oflicer  carrying  them  shall  be  paid  by  the  county  from  which  they  are 
sent,  such  fees  for  said  conveyance,  as  the  board  of  supervisors  of  said 
county  shall  direct.' 

For  serving  a  warrant  in  a  criminal  case,^  (but  not  unless 
an  arrest  is  made),*  90  50 

For  traveling  to  make  such  service,  each  mile,^  (if  an  arrest 
is  made),*  00 

But  in  Albany  county  no  traveling  fee  is  allowed  any  officer 
on  criminal  process,  unless  the  distance  is  over  two  miles.' 

Taking  a  defendant  into  custody  on  a  mittimus,'  12i 

Conveying   a   person   to  the   magistrate   or  court  before 
whom  he  is  to  be  brought,  or  to  jail,^  1-i 

If  the  distance  is  more  than  one  mile,  for  every  mile  more, 
goini^  only,'  Or» 

Serving  a  subpoena,  for  each  witness,'  1-i 

For  every  mile,  going  and    returning,  necessarily  traveled 
to  make  service  of  the  same,  **<» 

But  no  board  of  supervisors  shall  allow  any  charge  for  issuing  or  serv- 
ing any  subpo-na  in  any  criminal  case  or  jiroceeding  issued  or  served  on 
behalf  of  tlie  defendant.*  When  a  subpa>na  for  witnesses  in  criminal 
cases  or  complaints,  containing  one  or  niore  names,  shall  be  served  by  a 
constable  or  other  officer,  such  officer  shall  be  allowed  for  mileage  only 
for  the  distance  going  and  returning,  actually  traveled  to  make  such 
service  upon  all  the  witnesses  in  such  case  of  complaint,  and  not  sep- 
arate mileage  for  each  witness,  unless  the  board  of  supervisors  audit- 
ing the  accounts  for  such  service  shall  deem  it  equitable  to  make  a  fur- 
ther allowance.* 

iS'o  travel  fees  shall  be  allowed  for  traveling  to  subposna  a  witness 

•  Law»  1K47.  .li.  1  -  "JR.  H.  74'J,  (yi.  •  ::  U.  H.  S'M,  (,*0. 

"      l-.Vi.l,  M. '.».'{ t,»V»,  4  ihcd.  Laws  1M6,  ch.  180,  ^18. 

iLaw-.  !  '1  D.'iiio,  (i6H. 

"1  ■■'  L.iWH  1844,  ch.  80,  <,i. 

"    1600,  tU.  HI  J^io:i,(,i. 


FEES  OF  SMRRIFFS.  421 

lievond  the  limits  of  the  county  in  which  tlie  subpaina  was  issued,  or 
of  an  adjoininj^  county,  unless  the  hoard  auchting  the  account  shall  be 
satisfied  hy  proof  that  such  wilness  could  not  be  subfxx-naed  williout 
additional  travel;  nor  shall  any  travel  fees  for  subixcnuing  witnesses 
be  allowed,  except  such  as  the  board  auditing  the  acc^ount  shall  be  sat- 
isfied were  indispensably  necessary.'  Such  proof  is  usually  the  certi- 
ficate of  the  district  attorney  or  magistrate,  of  the  necessity  of  send- 
ing the  officer  beyond  the  limits  of  the  county,  or  of  the  adjoining 
county. 

The  board  of  supervisors  may  allow  such  farther  compensation  for 
the  service  of  process,  and  the  exjienses  and  trouble  attending  the 
same,  as  they  shall  deem  reasonable.^ 

The  moneys  necessarily  expended  by  sheriffs  in  the  execution  of  the 
duties  of  their  office,  in  cases  in  which  no  specific  compensation  for 
such  services  is  provided  by  law.^ 

Accounts  of  sheriffs  for  paying  the  fees  of  clerks  of  counties,  for 
drawing  grand  juries,  for  attending  the  drawing  of  grand  juries,  and 
for  summoning  constables  to  attend  courts.^ 

For  other  services  in  criminal  cases,  for  which  no  compensation  is 
specially  provided,  such  sum  as  the  board  of  supervisors  of  the  county 
shall  allow.* 

For  any  service  which  may  be  rendered  by  a  constable,  the  same 
fees  as  are  allowed  by  law-,  for  such  services,  to  a  constable.' 

For  giving  notice  of  any  general  or  special  election,  to  the  super- 
visors or  assessors  of  the  different  towns  and  wards  of  his  county,  for 
each  ward  and  town,  one  dollar  and  the  expense  of  publishing  such 
notices  as  as  required  by  law.® 

3.    FEES    FOR    SUMMOMNG    JUROR.S. 

g  1108.  For  summoning  each  grand  jury,'  SlO  00 

For  summoning  grand  and  petit  jurors  for  the  Recorder's 
court  of  Oswego,'  2  00 

For  summoning  the  jury  to  attend  any  court,  for  each  cause 
noticed  for  trial  at  each  court,  or  placed  on  the  calendar 
thereof  for  trial,  to  be  paid  by  the  j^arty  who  put  it  ou  the 
calendar,'  50 

»  1 R.  S.  681,  ()29.  ■•  2  R.  S.  750,  <)*.  «  2  R.  S.  646,  $38. 

L.ws  1845,  ch.  180,  $27.  Id.  935,  <>4, 4th  cd.  Id.  833,  $21,  4tb  cd. 

s  2  R.  S.  750,  $4.  L.ws  183G,  ch.  606,  $4.  7  Auto,  (^107. 

Id.  934,  $4,  4th  cd.  18  John.  242.  2  Cow.  631.  8  2  R.  S.  645,  $08. 

3  1  R.  S.  385,  $3.  12  Wund.  267.  Id.  8:34,  $21,  4th  ed. 

Id.  711,  $8,  4th  ed.  s  2  R.  S.  040,  $21.  1  How.  Pr.  R.  59. 

Laws  1831,  ch.  320,  $22.  Id.  835,  $38,  4th  ed.  6  John.  126. 


■\'>2  fi:es  or  siiiiuirr^. 

Summoning  a  jury  upon  a  writ  of  in(|uirv,  or  in  any  rase 
where  it  shall  heconje  necessary  to  try  the  title  to  any  jwr- 
sonal  property,  attending  such  jury,  ami  making  and  returning 
the  inquisition,'  SI   r»0 

Summi»ning  a  jury  pursuant  to  any  pre<'ept  or  summons 
of  any  orticer,  in  any  spe«"ial  proceeding,'  1   0<i 

Attending  such-jury  when  recpiired,'  50 

For  summoning  a  jury  in  the  case  of  an  absconding  or 
insolvent  debtor  to  be  paid  i)y  the  creditors,^  1    12i 

For  summoning  a  jury  in  a  plank  road  case,  for  each  mile 
travelled,'  00 

•1.    KKKS    I\    CIVIL    ACTIONS. 

^  1109.  The  plaintifl'  in  an  action,  and  his  attorney,  arc  each  liable 
to  the  sheriff  for  his  fees  in  serving  or  executing  process,  or  for  any 
official  services  rendered  in  the  cause.*  But  if  the  sheriff  elects  to 
look  to  the  attorney  exclusively,  and  gives  him  the  whole  credit,  he 
cannot  afterwards  look  to  the  party.'  When,  however,  a  party  is  per- 
mitted by  the  court  to  prosecute,  as  a  poor  person,  the  sheriff  or  other 
person  who  is  required  to  perform  any  service  therein  shall  do  their 
whole  duty  therein  without  taking  any  reward  for  the  same.* 

It  has  been  seen  that  where  the  sheriff  is  required  by  law  to  per- 
form any  official  duty,  for  which  no  fee  is  given,  and  he  is  not  required 
to  perform  the  same  without  i)ay,  he  is  entitled  to  receive  a  reasonable 
compensation  therefor/ 

The  following  fees  are  given  by  statute  :' 

For  serving  a  caj)ias  ad  resitondenilum,  writ  of  replevin, 
summons,  or  any  other  process,  by  which  a  suit  shall  be  com- 
menced in  a  court  of  law,  citation,  scire  facias,  or  declaration, 
on  each  defendant,"  when  there  shall  have  been  no  process 
previous  thereto,  80  50 

Most  of  the  process  mentioned,  have  become  obsolete,  but  under  the 
foregoing  jtrovisions  the  sheriir  would  be  entitled  to  the  same  lees  for 
serving  the  substituted  process,  as  those  nanu-d.  Thus  he  would  be 
entitled  to  the  same  fees  for  executing  a  judge's  order  for  the  arrest  of 
a  defendant  as  under  the  foregoini:  statute  he  was  entitled  to  for  the 
service  of  a  capias  ad  respondendum ;  and  for  executing  an  order  for  the 
delivery  of  personal  property,  the  same  fees  as  on  executing  the  former 
writ  of  replevin. 

I'JH   >^  c.l',  (,?ji.  «5J<.lin.  262.  t  Anto/^1097. 

I  4lh  chI.  4  Wfiid.  479.  »  2  R.  H.  044,  <)W. 

a  J  !  IH.  »  '.t  J.-lin.  114.  M.  88.1,  ^21,  4Uj  cd. 

M.  :l<.,  s,lt4,  4lh  tvl.  «  2  II  S  4  16.  <>3.  •  1  Cow.  231. 


»  1  K.  8.  1101,  Ml,  4lh  r.I.  M.  OVJ,  ^.'i,  lUi  cd. 

Laws  IMT.ch.  210,^17. 


Fields  01-  siii:iui-|-s.  423 

For  travelling  in  making  any  sudi  service,  six  cents  per  mile, 
for  going  only,  to  be  computed  in  all  cases  from  the  court  house 
of  the  county  ;  and  if  there  be  two  or  more  court  houses,  to  be 
computed  from  that  which  shall  be  nearest  to  the  place  where  the 
service  shall  have  been  made ;  except  that  in  the  county  of  Oneida, 
such  travel  shall  be  computed  from  the  court  house  in  Whitestown. 
Tiiou^h  the  court  house  in  Whitestown  has  ceased  to  be  used  as  a 
court  house,  the  law  remains  unchanged,  and  travel  fees  on  the  service 
of  any  i)rocess  heretofore  mentioned  should  be  still  com[)uted  from 
such  court  house. 

For  serving  a  notice  of  the  object  of  suit  with  each  sum- 
mons,' 80  '.i7h 
For  returning  any  writ,  summons,  complaint,'  &c.,  12^ 
For  taking  a  bond  of  a  plaintiff  in  replevin,  or  taking  a 
bond  on  the  arrest  of  a  defendant,  or  taking  his  indorsement 
of  appearance,  or  for  taking  a  bond  in  any  other  case  where 
he  is  authorized  to  take  the  same,  for  which  no  fee  is  allowed 
by  statute,                                      •                                                       37i 

The  same  remark  will  apply  to  the  lee  given  for  the  taking  any 
bond,  as  to  that  in  respect  to  the  service  of  process.  The  sherifT  would 
be  entitled  to  the  same  fees  on  taking  an  undertaking  in  any  cause 
where  the  same  is  authorized  by  the  Code,  as  for  a  bond. 

For  a  certified  copy  of  such  bond  or  undertaking,  25 

For  a  copy  of  every  summons,  scire  facias,  or  declaration 
served  by  him,  when  made  by  the  sheriff',  if  in  the  supreme 
court,  for  every  folio  of  one  hundred  words,  12^ 

If  in  the  county  court,  09 

For  a  copy  of  every  other  writ  when  demantled  or  required 
by  law  (but  no  such  charge  can  be  made  against  the  defendant,^)     19 

5.    FEES    0\    EXECUTIONS. 

^  1110.  The  fees  allowed  for  the  service  of  an  execution,  and  for 
advertising,  shall  be  collected  by  virtue  of  such  execution,  in  the  same 
manner  as  the  sum  therein  directed  to  be  levied.^  But  the  sheriff  has 
no  right  to  sell  the  defendant's  property,  for  the  purpose  of  collecting 
his  fees,  after  notice  that  the  judgment  has  been  settled,  but  he  must 
look  to  the  attorney  or  the  party,  unless  there  be  collusion  between 
the  parties,  and  the  plaintiff  and  his  attorney  are  irresponsible.^  When 
there  are  several  executions  in  the  hands  of  the  sheriff  at  the  same 
time,  against  the  same  party,  there  shall  be  but  one  advertising  fee 

»  2  Sandf.  742.  3  2  R.  3.  644,  ^38. 

s  2  R.  S.  441,  ^)96.  Id.  834,  <y2\,Uh  ed. 

U.  GS4,  <)16,  4lh  eJ.  <  4  Wcud.  479. 


424  I'HKS  OF  SlIKIllFFS. 

clmri^ed,  ami  he  sluill  elect  on  which  to  rharge  it.     Hut  he  is  onlilled  to 
travel  fees  and  pouiidai»e  on  all  executions  in  his  hands  on  which  he 
receives  money  to  apply  thereon.'     And  if  executions  issue  to  several 
counties,  and  a  levy  is  made  on  each,  and  the  money  collected  in  one 
county,  the  plainlitV  is  liahle  to  the  shcrilVof  the  other  counties  for  their 
fees  on  the  executions  in  their  hands,  on  which  they  have  made  a  levy. 
Thev  cannot  collect  such  fees  out  of  the  defendant  after  notice,  but 
they  njust  look  to  the  iilainlirt*  or  his  attorney.'     So,  if  any  execution 
is  settled  by  payment  or  the  taking  security  after  levy,  the  sheriff  is 
entitled  to  his  full  (cofi,  though  the  levy  would  not  pay  the  amount  of 
the  execution,  or  the  property  is  covered  by   previous   liens,  to  an 
amount  exceeding  its  value. ^     And  so  too,  he  is  entitled  to  his  fees 
and  j)oundage  where  a  levy  is  made.  ihoUijh  the  execution  is  irregular 
and  is  afterwards  set  aside  ;  and  if  the  plainlilV  direct  a  levy  uj>on  spe- 
cific property  and  afterwards  finds  it  not  liable  to  the  execution,  and 
thereupon  directs  the  levy  to  be  released,  he  is  liable  to  the  sheriff  for 
his  fees.       On  the   cajiias  ad  satisfaciendum,  the   sherifi'  is  entitled  to 
"his  fees  for  arresting  the  defendant  ;*•  and  this  too,  though  the  whole 
proceeding  is  irregular  and  a  new  judgment  is  obtained,  and  another 
execution  is  issued  and  the  sheriff  paid  on  that/     But  it  is  otherwise 
if  the  party  is  exempt  from  arrest.®     And  if  the  sheriff  arrests  him 
on  one  writ,  and  detains  him  on  another,  he  is  entitled  to  his  fees  on 
both.^     If  the  sheriff  does  anything  beyond   his  official  duty,  at  the 
instance  of  the  defendant  in  the  fi.  fa.,  he  is  entitled  to  remuneration 
beyond  his  poundage,  by  the  defendant ;  but  not  if  it  is  any  act  pro- 
hibite(f  by  law,  or  a  violation  of  his  duty.     Nur  can  he  charge  the 
expense  of  selling  the  goods  levied  on,  at  auction,  because  he  is  bound 
to  sell  them  himself.     Yet,  if  an  auctioneer  be  employed  at  the  request 
of  the  plaintiff  or  the  defendant,  or  any  other  jiarty  interested  in  having 
the  property  bring  the  largest  price,  such  i)arty  so  requesting  such 
auction  must  pay  the  expense.* 

5  1111.  U|ion  the  settlement  of  an  execution,  by  a  defendant,  or 
upon  settling  any  suit  or  demand,  the  sherilV  or  attorney  claiming  any 
fees  which  shall  not  have  been  taxed,  shall  upon  being  required  by  the 
defendant,  and  on  his  paying  the  expense  thereof,  have  his  fees  taxed 
by  some  proper  officer  of  the  court,  in  which  the  ai-tion  may  be  pend- 
ing, or  for  whitji  the  exe<:ution  shall  have  been  issued.*  No  sheriff 
or  attorney  shall  collect  any  fees  after  having  been  re(juired  as  afore- 

I  .1  Tow.  .1H.1  4  r,  J.,l,n.  252.  •  WaUoti,  80. 

a  <j  w.-f,.1  4  !'■;  s  i.i  j„i,„.  :{?«.  Chluy  on  Cont.  683. 

Gi  ;'>;5.  •  10  John.  (>;{.  2T«Tin  K.  in;. 

M  <  ^  W.itsoii,  .SU.  •  2  II   !^   •'<'>-,  <A- 

0  v......    .  .<.  Id.  810,  vl,  Jibed. 

17    "      II.  13  John.  378. 
G  Juhn.  202. 


FERS  OF  SriRRIFFS.  42^ 

said,  to  have  the  same  taxed,  without  such  taxation  having  been  made.' 
Where  an  ollicer's  fees  have  l;een  rci^ularly  taxed,  it  is  an  answer  to 
ail  action  for  tret^le  damages  under  the  statute  for  extortion,'  as  well  as 
to  an  action  to  recover  back  the  money.' 

(5  1112.  The  following  fees  have  been  prescribed  by  statute  u|)on 
the  service  of  executions  against  the  person  or  property  :* 

For  serving  an  attachment  for  the  payment  of  money,  or 
an  execution  for  the  collection  of  money,  or  a  warrant  for 
the  same  purpose,  issued  by  the  comptroller,  or  by  any  county 
treasurer,  for  collecting  the  sum  of  two  hundred  and  filty 
dollars,  or  less,  per  dollar,  80  02i 

And  for  every  dollar  collected,  more  than  two  hundred 
and  fifty  dollars,  01  i 

For  mileage  on  every  execution,  for  going  only,  to  be  com- 
puted from  the  court  house,  per  mile,'  00 

The  sherilF  is  entitled  to  the  saine  fees  as  upon  executions  in  civil 
cases,  upon  executing  process  of  the  district  attorney,  for  the  collec- 
tion of  fines  imposed  by  courts  upon  jurors  and  others.* 

Advertising  goods  or  chattels,  lands  or  tenements  for  sale, 
on  any  execution,  2  00 

And  if  the  execution  be  stayed  or  settled,  after  advertising 
and  before  sale,  1  00 

The  fees  allowed  by  law,  (being  not  more  that  fifty  cents  per  folio 
for  the  first  insertion,  and  twenty  cents  per  folio  for  each  subsequent 
insertion  after  the  first,^)  and  paid  by  such  sheriff  to  any  printer  for 
publishing  an  advertisement  of  the  sale  of  real  estate,  for  not  more 
than  six  weeks ;  and  for  continuing  such  advertisement  more  than  six 
weeks,  or  for  publishing  the  postponement  of  any  such  sale,  the  expense 
of  such  continuance  or  postponement  shall  be  paid  by  the  party 
requiring  the  same.' 

Where  proceedings  are  stayed  upon  an  execution  until  the  decision 
of  a  non-enumerated  motion,  and  the  motion  is  denied,  and  the  adver- 
tisement has  been  continued  in  the  meantime,  the  })arty  against  whom 
the  process  issued  is  liable  to  pay  the  expense  of  the  advertisement ; 
but  he  is  not  so  liable,  where  the  proceedings  are  stayed  for  the  pur- 
pose of  enabling  the  party  to  move  for  a  new  trial  on  a  case  made.' 

For  everv  certificate  on  the  sale  of  real  estate  or  on  the 
redemption  thereof,'"  for  each  folio,  25 

>  2  R  S    G52  ^<a1,  2.  s  2  R.  S.  835,  <>21,  4th  ed.  s  6  Wend.  535. 

Id.  840  W)l,  2,  4th  ed.  L.iws  1830,  ch.  300,  ^57.  »  18  Wend.  590. 

a  Ante,  \>10%.  «  2  R.  S.  485,  ^25.  ><>  2  R.  S.  623,  f>79,  4th  ed. 
3  2  Denio  26.                               M.  726,  v>23,  4th  ed.  Laws  1847,  ch.  410,  ^7. 

2  Hill,  135.  7  2  R.  S.  648,  ^45. 
*  2  R.  S.  644,  ^38.  Id.  837,  ^31,  4lh  ed. 


Id.  833,  «i21,  4ih  ed. 


55 


•\2G  FFKS  OF  islIliKIl- KS. 

I\»r  two  copies  of  the  certilicatc  ol  sale,  and  one  of  the 
certificate  of  redemption,  f<»r  each  foho,  $0    l'2{ 

The  clerk's  fees  on  fihng  certificate  of  sale,  UO 

The  fees  before  mentioned  for  the  service  of  an  execution,  and  for 
advertising  thereon,  and  clerk's  fees  for  tiling  the  certificate  of  sale, 
shall  be  collected  by  virtue  of  such  execution,  in  the  same  manner 
as  the  sum  therein  directed  to  he  levied.  But  when  there  shall  he 
several  executions  against  the  defendant,  at  the'timeof  advertising  his 
proj>erty,  in  the  hands  of  the  san>e  sheritV,  there  shall  be  but  one 
advertising  fee  charged  on  the  whole,  and  the  sheriff  shall  elect  on 
which  execution  he  will  receive  the  same. 

The  fee  for  the  certificate  of  redemjition  must  be  paid  by  the  party 
for  whose  benefit  the  same  is  made. 

For  a  deed  on  the  sale,  to  be  paid  by  the  grantee,  1    00 

For  serving  an  execution  issued  by  the  county  clerk,  upon  the  judg- 
ment of  a  justice,'  or  the  warrant  of  the  county  treasurer  for  the  collec- 
tion of  taxes  upon  rents  reserved,'  the  same  fees  as  are  allowed  to 
constables  on  justices'  executions,  to  wit ; 

For  serving  an  execution,  for  every  dollar  collected,  to  the  amount 
of  fifty  dollars,  05 

For  every  dollar  collected  over  fifty  dollars,  02J 

For  every  mile,  going  only,  more  than  one  mile,  to  be  com- 
puted from  the  [)lace  of  abode  oi  the  defendant,  or  where  he 
shall  be  found,  to  where  the  execution  or  warrant  is  returna- 
able,  each  mile,  0(! 

In  addition  to  the  lees  now  allowed  to  sherills  on  executions  against 
proi)erly  in  civil  actions,  they  shall  be  entitled  to  demand  and  receive  on 
such  executions  the  sum  of  fifty  cents  for  receiving  and  entering  the 
same  in  their  books,  searching  for  property  and  paying  the  postage  on 
the  return  of  the  said  execution,  if  such  return  be  made  by  mail,  which 
sum  shall  be  a  charge  against  and  to  be  collected  of  the  person  by 
whom  the  said  execution  was  issued,  except  when  he  is  a  county  clerk, 
or  of  the  j>erson  in  whose  favor  the  judgment  was  rendered.'  The 
said  sum  of  fil'ty  cents,  in  the  case  of  judgments  hereafter  recovered, 
shall  be  one  of  the  disbursements  to  be  included  in  the  bill  of  costs, 
fixed  in  favor  of  the  parly  entitled  thereto.  In  cases  when  judgment 
has  been  already  obtained,  the  said  sum  shall  bo  collected  by  the 
.sherifT  from  the  defendant  in  the  execution,  in  the  same  manner  as  his 
other  fees  are  now  collected.* 

For  returning  every  execution,  to  be  paid  by  the  plaintiff 
also,  12i 

I  2  R  fl  2Cr*,  ^229.  »  2  R.  8.  8115,  (^22,  4lh  cd. 

M    4M,  <)\W,  4lh  H  LawH  IWiO,  rh.  226,  ^1. 

t  1  R    H   74'.»,  <,ir>3,  4th  •:<1.  ♦  2  H   H,  M.'/,,  <^2A,  4lli  «m1. 

Laws  IblO,  ch.  327,  <;4.  Laws  lb60,  ch.  226,  <>2. 


FEES  OF  SFIKRIFFS.  427 

The  foregoing  fees  on  receiving  and  returning  executions,  are  to  be 
rollected  of  the  phiintifT  or  his  attorney,  whether  anything  is  made  on 
the  execution  or  not. 

On  the  county  treasurer's  warrant  against  a  dehnciuent  collector,  the 
sherilT  shall  retain  out  of  the  inonoys  collected  the  same  fees  that  the 
collector  would  have  been  entitled  to  retain.' 

g  1113.  On  the  sale  of  premi.ses  under  a  decree  of  foreclosure,  or  in 
partition,  the  sherilV  shall  receive  his  disbursements  for  i)rinters'  fees. 
He  shall  also  be  entitled  to  receive  the  same  fees  as  upon  sales  by 
virtue  of  an  execution,  but  such  fees  shall  in  no  case  exceed  the  sum 
of  ten  dollars.  If  the  amount  bid  on  any  such  sale,  or  any  part  of  su'di 
amount,  shall  be  credited  on  the  decree  of  sale,  or  be  bid  by  the  person 
or  party  in  whose  favor  the  decree  sliall  be  made,  the  fees  of  the  sheriff 
shall  be  estimated  upon  the  suri)lus,  over  and  above  the  atnount  so 
credited  or  bid  by  such  person  or  party  ;  but  if  the  fees  on  the  whole 
sum  bid  on  such  sale  would  amount  to  more  than  five  dollars,  in  case 
no  part  thereof  was  so  credited  or  bid  by  such  person  or  party,  the 
sheriff  shall  be  entitled  to  five  dollars,  if  the  fees  on  the  sum  actually 
paid  would  not  amount  to  tiiat  sum." 

5  1111.  Serving  a  writ  of  possession  or  of  restitution  ; 
putting  any  person  entitled,  into  possession  of  premises,  and 
removing  the  tenant,  -^1  -5 

And  traveling  fees,  going  only,  each  mile,  OG 

Returning  the  writ,  1-A 

If  there  is  a  fi.  fa.  for  costs,  as  a  part  of  the  writ,  the  same  fees  as 
on  executions  in  other  cases. 

^  1115.  For  every  prisoner  committed  to  prison,  for  re- 
ceiving, 25 

For  discharging  every  prisoner  committed,  25 

To  be  paid  by  the  plaintiff  in  the  process.^ 

But  the  sheriff  is  not  entitled  to  any  fee  for  discharging  a  jtrisoner 
when  he  takes  a  bond  for  the  limits,  for  it  is  not  a  discharge  within 
the  meaning  of  the  statute.* 

Taking  a  bond  for  the  liberties  of  the  jail,  37^^ 

Where  the  prisoner  is  sujtported  by  the  sheriff  while  in  jail,  he  is 
entitled  to  a  reasonable  compensation  therefor.  The  restrictions  upon 
the  sheritr  against  extortion  in  such  case,  have  been  hereinbefore 
pointed  out.^  • 

When  any  prisoner  shall  be  committed  to  jail  by  virtue  of  any  civil 

'  1  R.  S.  400.  ^14.  3  2  R.  S.  8.35,  ^21,  4th  ed. 

Id.  727,  ^26,  4th  cd.  Laws  1830,  ch.  300,  ^57. 

2  2  R.  S.  373,  \;49,  4th  cd.  *  2  Wond.  002. 

Laws  1847,  ch.  280,  ^77.  s  Ante,  ^602. 


428  FEES  UF  SIIHRIFFS. 

process  issued  by  any  coiirl  of  reccuil,  instituted  under  the  nuthority 
of  the  United  States,  the  sherilV  may  receive  to  his  own  use,  such 
sums  of  money  as  shall  be  i>ayable  l>y  the  L'nited  States,  for  the  use 
of  said  jails.' 

Sherills  are  likewise  retjuired  to  receive  into  jail  prisoners  committed 
by  the  United  Slates  on  criminal  |)rocess,  the  United  Slates  supporting 
such  prisoners.  Xolhini;  is  declared  in  the  statute  as  to  wUo  shall  be 
entitled  to  the  payment  made  therefor,  but  il  is  conceived  thai  under  the 
foregoing  provisions,  ihe  sheriff  will  be  entitled  lo  receive  any  fees 
therefor,  the  United  States  is  recpiired  to  make. 

;3  lllt».  Each  oHicer  lo  wh<->m  a  writ  fur  the  collection  of 
military  fines  may  be  directed,  shall  be  entitled  lo  the  same  fees,  and 
be  subject  to  the  same  penalties  for  any  neglect,  as  are  allowed  and 
provided  for  on  executions  issued  oul  of  justice's  courts.' 

For  all  other  services  and  commitments  under  the  said  law,  the 
sheriir,  jailer,  and  constables  executing  the  same,  shall  be  entitled  lo 
the  like  fees  as  for  similar  services  in  other  cases.' 

5.  fj:f.s  o\  attachments  against  foreign   couroRATioNs,  non- 
resident,    OR     AUSCONDING,     OR     CONCEALED     DEUTOR3  ;     AND 

AGAINST  smrs. 

J  1117.  For  serving  an  attachment  against  the  property 
of  a  debtor  under  the  provisions  of  chapter  five  of  Ihe  second 
part,*  or  against  any  ship  or  vessel,'  under  the  jtrovisions  of 
the  eighth  title  of  chai)ter  eight  of  part  third  of  the  Revised 
Statutes ;  or  against  foreign  corporations,  non-resident  or 
absconding,  or  concealed  debtors,  under  the  provisions  of  the 
Code,*  80  fjO 

For  returning  the  attachment,  12i 

With  such  additional  comi)ensation  for  his  trouble  and  expenses  in 
taking  possession  of  ami  preserving  the  proj)erty  attached,  as  the 
oflicer  issuing  the  warrant  shall  certify  to  be  reasonable.  And  where  the 
profHjrty  so  attached  shall  afterwards  be  sold  by  the  sherifl^,  he  shall  be 
entitled  to  the  same  jioundage  on  the  sum  collected,  as  if  the  sale  had 
been  made  under  an  execution. 

For  making  and  returning  an  inventory  and  appraisal,  such  compen- 
sation to  the  appraisers,  not  exceeding  one  dollar  to  each  per  day,  for 
«ach  day  actually  enij>lf»yed,  as  the  ollicer  issuing;  the  attachment  shall 
allow,  and  the  same  comjjensalion  for  drafting  and  copying  the  inven- 

»  2  R.  8.  443,  <)9«.  »  M.  mib.  4.  •  Ante,  ^^>8f>4,  Ac. 

M   f.H7.  <,liy,  4tli  wl.  •  Ai.t«-,  </.\M).  2  U.  H.  0-16,  (>3«. 

»  L.iwfi  1H64,  p.  1068,  ^28,  M  <//.^\ ,  &c.  Id.  8«34,  (/il,  4th  ed. 

sub.  3.  •  Aulv,  <//<i'Jl,  &c. 


FEES  OF  SrTF.RIFFS.  429 

tory,  as  is  allowed  for  drafts  and  (•(»|)ics   to  attorneys  in  the  supreme 
court. 

Such  allowance  is,  for  drafting  eacli  folio,  25 

For  co[)ying  each  folio,  l^i 

For  scllinf^any  property  so  attached,  and  for  advertising  such  sale, 
the  same  allowance  as  for  sales  on  executions. 

The  costs  and  charges  of  the  sherifl'  on  an  inquest  of  title,  in  the 
case  of  :i  non-resident  debtor,  to  be  allowed  by  the  officer  issuing  the 
warrant,  shall  be  paid  by  the  attaching  creditor,  if  the  title  to  the 
property  is  found  in  the  claimant,  and  if  not  then  by  such  claimant.' 

G.    FEES    OV    WRITS    OF    IIADEAS    CORPUS,    AND    CHRTFORABI. 

^  1118.  Bringing  up  a  prisoner  on  habeas  corpus,  to  testify 
or  answer  in  any  court, 

For  traveling  each  mile  from  the  jail,'^ 

For  attending  such  court  with  such  prisoner,  per  day, 
besides  actual  necessary  expenses,^ 

Making  return  to  the  writ, 

Copy  of  process  to  annex  to  return,  for  each  folio, 

Return  to  writ  of  certiorari. 

Copy  of  process  to  annex  to  return,  for  each  folio,* 

7.    FEES    IN    OTHER    CASES. 

§  1119.  There  is  no  fee  prescribed  for  the  execution  of  a  warrant, 
under  the  non-imprisonment  act,  but  the  taxing  officer  usually  allows 
the  same  compensation  as  is  given  in  cases  of  habeas  corpus.' 
Executing  an  attachment,  50 

Travel  fees  for  each  mile,  06 

Bond  taken  on  the  arrest,  37|- 

Return  of  writ,'  V-i^ 

No  fee  is  prescribed  for  the  service  of  an  attachment 
against  a  defaulting  witness,  or  the  like,  where  the  jiarty  is 
arrested  and  brought  into  court.  It  is  usual,  however,  for  the 
court  before  whom  the  party  in  contempt  is  brought,  to  impose 
such  fine  as  will  be  a  reasonable  compensation  to  the  officer 
making  the  arrest.  Usually  there  is  allowed  for  serving  the 
attachment,  ^'^ 

Return  thereof,  12 J 

>  2  R.  S  4   ()12  «  7  Cow.  424.  «  2  R.  S.  575,  ^83. 

Id.  189,  (>12,  4tb  cfl.  3  2  R.  S.  G4G,  (>38.  Id.  807,  <)W,  4tb  cd. 

Laws  l'841,  cb.  297,  ^l.  Id.  834,  *i21,4th  ed.  s  Ante,  (;)1I18. 

Code,  ^233.  '  3  Paige,  87. 


81 

50 

m 

1 

00 

12i 

12^ 

12.V 

1'4 

430  CORONKUS'  rp.Ks. 

Travel  fees  from  tlio  place  of  arrest  to  the  rourt  wliere 
the  writ  is  returnable,  for  ea«li  mile,  12^ 

Attending  before  any  oflicer  with  a  prisoner,  for  the  pur- 
pose of  havini;  him  surrendered  in  exoneration  f)f  his  hail  ; 
or  attending  to  receive  a  prisoner  so  surrendered  who  was 
not  committed  at  the  time  ;  and  receiving  any  such  prisoner 
into  his  custody  in  either  case,  1   00 

Attending  a  view,  per  day,  1   87^ 

Going  and  returning,  per  day,'  1  25 

All  sheriff's,  coroners,  and  wreck  masters,  and  all  persons  employed 
by  them,  and  all  other  persons  aiding  and  assisting  in  the  recovery 
and  preservation  of  wrecked  property,  shall  be  entitled  to  a  reasonable 
allowance  as  salvage,  for  their  services,  and  to  all  exjicnses  incurred 
by  them,  in  the  performance  of  such  service,  out  of  the  property 
saved,  and  the  olTicer  having  the  custody  of  such  property  shall  detain 
the  same,  until  such  salvage  and  expenses  shall  be  paid.  But  the 
whole  salvage  that  shall  be  claimed  in  any  case  shall  not  exceed  one 
half  of  the  property  or  proceeds,  on  which  such  salvage  shall  be 
charged,  and  every  agreement,  order,  or  judgment,  allowing  a  greater 
salvage  shall  be  void." 

For  any  services  which  may  be  rendered  by  a  constable,  the  same 
fees  as  are  allowed  by  law,  for  such  services  to  a  constable.* 

CHAPTER  III.  ' 

CORONERS'  FEES. 

5  1 120.  For  all  services  rendered  by  coroners  in  actions  or  proceed- 
ings where  they  are  authorized  to  art,  whether  as  jieace  officers,  in 
consequence  of  the  sheriff  being  a  jiarty  to  such  actions  or  proceedings, 
or  while  they  are  discharging  the  duties  of  the  office  of  sheriff'  during 
a  vacancy  in  the  office,  they  are  allowed  the  same  fees  as  sheriffs  for 
similar  services.'  They  are  also  entitled  to  the  same  compensation  for 
their  services  in  the  case  of  wrecks,  as  shcriiVs  and  wreck-masters.* 

For  confining  a  sheriff'  in  any  house,  on  civil  process,  two  dollars 
for  each  week,  to  be  paid  by  such  sherilV  before  he  shall  be  entitled  to 
be  discharged  from  such  confinement.* 

5  1121.  The  compensation  to  be  paid  to  the  coroners  of  the  several 
cities  and  counties  of  this  state,  for  holding  any  iiupjest  in  the  cases 
authorized  by  law,  shall  be  fixed,  and  together  with  all  necessary  inci- 

1  2R.  P   "^ '"  »  '2.  R.  B-  047.  <)?.0.  »  ::  K.  S.  047,  <)V.\. 

\i\    y  •  '1.  M  H,'/).  C/J4,  4lh  cd.  Id.  836,  ^24,  4th  cd. 

«  1  U.  .S.  ■.  .,  ,,..   13.  «  Ante,  (>iiiy. 

2R.8.  H«,V>1-.  18,4tbcd. 


CORONERS'    FEES.  431 

dental  expenses,  shall  be  audited  and  allowed  by  the  hoard  of  supervisors 
of  their  resi)ective  counties,  and  |)aid  in  like  manner  as  other  county 
charges.' 

^  1122.  The  board  of  sujiervisors  of  the  respective  counties  some- 
times allow  a  specific  sum  for  all  services  rendered  by  a  coroner  upon 
an  in([uest  in  any  given  case  ;  and  sometimes  an  allowance  is  made 
for  vie  wing  the  body,  and  in  addition  thereto  the  same  fees  as  magistrates 
and  sherifis  are  entitled  to  receive  for  similar  services,  upon  the  inrjuest, 
or  upon  examination  of  the  jirisoner,  as  follows : 

For   viewing    the   body,  the   amount  to    be   fixed    by  the    board  of 
sujiervisors. 

Precept  for  summoning  the  jury,  80  37^ 

Summoning  the  jury  and  attending  the  same,  1    "jO 

Swearing  the  jury,  ^^ 

Subpoenaing  each  witness,  12A^ 

Travel  fee  in  subpoenaing  witnesses,  for  each  mile  traveled,         00 
Swearing  each  witness,  00 

Drawing  inquisition,  for  each  folio,  25 

Engrossing  to  sign,  each  folio,  12^ 

Travel   fees  in  returning  inquisition  to  clerk's  oHice,  each 
mile,  Oi'y 

Warrant  for  the  arrest  of  one  charged  with  the  crime,  19 

Subpoena  for  each  witness,  OG 

Administering  every  oath,  00 

Warrant  of  commitment,  25 

Each  recognizance  of  witness,  25 

A  reasonable  compensation,  and  the   actual  expenses  of  digging  up 
and  burying  again  the  body,  on  which  an  inquest  is  held. 

Every   other    necessary   expense   incurred    upon    the   inquest  or 
examination  of  the  person  charged  with  the  crime. 

Before  auditing  and  allowing  the  accounts  of  coroners,  the  super- 
visors of  the  county  shall  require  from  each  of  them  respectively,  a 
statement  in  writing,  containing  an  inventory  of  all  money  and  other 
valuable  things  fouml  with  or  upon  all  persons  on  whom  inquests  shall 
have  been  held,  and  the  manner  in  which  the  same  have  been  disposed 
of,  verified  by  the  oath  or  alTumation  of  the  coroner  making  the  same, 
that  such  statement  is  in  all  respects  just  and  true,  and  that  the  money 
and  other  articles  mentioned  therein  have  been  delivered  to  the  treasurer 
of  the  county,  or  to  the  legal  representatives  of  such  person  or  persons.' 
(^  1123.  The  said  coroners  shall  be  entitled  to  receive  a  reasonable 
compensation  for  making  and  rendering  such  statement,  and  for  their 

1  2  R.  S.  752,  (>10.  «  2  R.  S.  926,  <>12,  4th  cd. 

Id.  937,  <)\6,  4th  cd.  Laws  1842,  ch.  155,  ^3. 


132  COiNSTABLKS'  FEKS. 

trouble  and  services  in  the  preservation  and  delivery  of  said  eHects  and 
l>r«.>j)erty,andall  rensonaMc  expenses  incurred  by  them  in  relation  thereto, 
to  be  audited  by  the  board  of  su)>ervisors,  in  addition  to  the  fees  or 
compensation  to  be  allowcMl  by  them  for  holding  an  inquest.' 

CHAPTER    IV. 

CONSTABLES'  FEES. 

<S  1121.  As  a  general  thing  the  same  rules  relative  to  the  fees  of 
sheritTs,  apply  to  constables.  These  have  been  already  stated."  Like 
sherifl's.  they  are  liable  to  indictment  for  extortion,  or  the  exadion 
of  illegal  fees ;  or  for  demanding  fees  before  they  have  rendered  the 
services,  in  cases  where  they  are  not  so  authorized  to  demand  them. 
And  so  they  are  entitled  to  a  reasonable  ctmipensation  from  the  party 
requiring  their  service,  when  n<^  fee  is  given  therefor,  and  they  are  not 
in  terms  required  to  perform  the  act  without  compensation.  And 
like  sheriffs,  loo,  they  are  entitled  to  ])Ountlnge' upon  an  execution, 
though  they  merely  levy  on  the  defendant's  property,  where  the  parties 
compromise  before  sale.  Biit  it  is  otherwise  if  the  compromise  is 
made  before  levy  or  arrest,  for  then  they  have  done  nothing  officially.'  So 
a  constable  is  entitled  to  nothing  where  he  has  returned  that  the 
property  is  on  hand  for  the  want  of  buyers.  To  entitle  him  to  his 
fees  on  an  execution,  he  must  levy  the  money,  unless  prevented  by 
the  plaintiff,  or  the  operation  of  law.* 

^  irj5.  The  constables'  fees  in  criminal  cases,  and  to  which  they 
should  be  charged,'  whether  the  county  or  the  town,  will  be  found 
under  the  head  of  sheriffs'  fees.' 

J  IT-iO.  For  any  service  not  provided  for,  which  may  be  rendered 
by  a  constable,  they  are  entitled  to  the  same  fees  as  are  allowed  by 
law  to  sheriffs  for  similar  services.' 

J  1  \21.  The  following  fees  are  a  county  charge  : 

For  attending  any  court,  pursuant  to  notice  of  the  sheriff*, 
if  in  New  Yorlt,  per  day,  81  50 

In  the  other  counties  of  this  state,  per  ilay,^  1  25 

And  he  is  entitled  to  such  compensation,  if  summoned  for  that  pur- 
pose by  the  sheriff,  though  he  should  also  be  a  de|>uty  of  the  sheriff, 
and  does  not  perform  any  of  the  duties  of  conataI)le.  It  is  sufficient 
ihal  he  is  summoned  and  is  ready  to  act.'  Such  compensation  is  paid 
by  the  rounty  treasurer,  out  of  the  fund  jirovided  for  that  purpose,  on 
the  certifieate  of  the  clerk  «jf  the  court ;  who  grants  the  same  on  the 

I  2  R.  8.  020,  ()tH,  4th  «!.  «  2  Cow.  421.  »  2  R.  8.  017,  ^,10. 

Lawn  1H4'J,  rh.  166,  <>4,  »  Ai.to,  <^\UH\  &c.  M.  mC,  (/Zh,  4lh  cd. 

«  AnU-,  <)<,VyJl,  Ac.  •  2  K.  8.  617.  ^10.  •  4  Cow.  140. 
>  2  Cow.  Tr.  602.                        Id.  83G,  ^^6,  4lb  od. 


CONSTABLES'   FKFS.  433 

certificate  of  the  sherifT,  that  such  constable  was  summoned  and  has 

attended   the  court  as  constable,  and   the  number  of  days  he   has  so 

attended. 

For  transporting  paupers  to  the  county  poor  house,  such  compensa- 
tion ^s  the  county  sujierintendents  of  the  poor  may  allow.' 
3  1128.  The  following  are  the  fees  of  constables,  in  civil  cases, 

as  prescribed  by  statute  :^ 

For  serving  a  warrant  or  summons,  l'-^^ 

For  a  cojiy  of  every  summons  delivered  on  request,  or  lelt 

at  the  dwelling  of  the  defendant  in  his  absence,  09 

For  serving  an  attachment,  50 

For  a  copy  thereof,  and  of  the  inventory  of  the  property 

seized,  left  at  the  last  residence  of  the  defendant,  SO 

For  serving  an  execution  for  every  dollar  collected  to  the 

amount  of  fifty  dollars,  05 

For  every  dollar  collected  over  fifty  dollars,  02+ 

For  every  mile,  going  only,  more  than  one  mile,  when 

serving  a  suminons,  warrant,  attachment,  or  execution,  00 

Such  travel  fees  to  be  computed  from  the  place  of  abode  of  the 

defendant,  or  where  he  shall  be  found,  to  the  place  where  the  precept 

is  returnable. 

For  notifying  a  plaintiff  of  the  service  of  a  warrant,  12|^ 

And  for  going  to  the  plaintiff's  residence,  or  where  such 

notice  was  served,  for  every  mile  more  than  one,'  06 

For  subpoenaing  a  witness,  12^ 

Summoning  a  jury,  50 

Summoning  a  jury  to  assess  damages  in  a  highway  case,'      2  00 
If  the  jury  is  taken  for  the  same  town,  1  00 

Summoning  a  jury  in  the  case  of  draining  swamps,*  1  00 

^  1129.  In  special  proceedings,  constables  are  entitled  to  the  follow- 
ing fees :' 

Serving  a  summons,  12^ 

Serving  a  warrant,  19 

Mileage  in  each  case,  for  going  only,  for  each  mile,  00 

Advertising  and  selling  any  property  distrained  for  doing 
damage,  or  levying  a  fine,  penalty,  or  sum,  pursuant  to  any 
warrant,  the  same  fees  as  are  allowed  for  similar  services  on 
executions  from  justices'  courts. 

Arresting  and  committing  any  person  pursuant  to  process,         50 
Mileage,  for  going  only,  each  mile,  06 

I  1  R.  S.  617,  «iil6,  sub.  5.  3  i  r.  s.  1044/>83,  4th  ed.     s  2  R.  S.  647,  <i25. 

2  R.  S.  12,  (\25,  4tli  ed.  L.aws  1847,  ch.  455,  (>19.         Id.  836,  ^40,  4th  ed. 

s  2  R.S.  265,^148.  *  2  R.  S.  781,  ^11,  4th  cd. 

Id.  461,  ^liS,  4th  ed.  Laws  1861,  ch.  346,  42. 

56 


434  CONSTAHLKS*  FHKS. 

^1130.  All  town  and  couniy  Dllicers,  and  all  other  persons  who 
may  present  to  the  board  o!"  supervisors,  acruiints  fur  their  services, 
to  be  audited  and  allowed,  shall,  before  any  such  account  or  claim 
shall  be  passed  upon  or  allowed,  exhibit  a  just  and  true  statement  in 
writini;.  of  the  nature  of  the  service  performed  by  them.' 

^  1  i:U.  In  all  oases  in  which  a  specific  compensation  for  any  service 

is  not   provided  by  law,  the   oflicer  <>r  jierson   presenting  an  account 

therefor,  shall  also  exhibit  in  writing,  a  just  and  true  statement  of  the 

time  actually  and  necessarily  devoted  to  the  performance  of  such 

services.' 

>  1  R.  8.  385,  a.  »  1  R.  S.  3%,  fy2. 

Id.  711,  ^1,  llh  cd.  Id.  711,  ()2,  4lb  cd. 


APrE.NDlX. 


^  1132.  Since  the  foregoing  part  of  this  work  lias  been  jiut  to 
press,  several  new  statutes  have  been  enacted  by  the  legislature  of 
this  state,  and  gone  into  operation,  which,  in  some  respects  add  to  the 
duties  and  liabilities  of  sherills,  coroners  and  constables,  and  in  other 
respects  vary  the  duties  imposed  upon  them.  The  parts  of  such 
statutes  as  relate  to  the  duties  of  these  oflicers  will  be  given  herein. 

1.  DUTIES  OF  SHERIFFS  AND  CONSTABLES  UNDER  THE  ACT  ENTITLED 
"  AN  ACT  FOR  THE  PREVENTION  OF  INTEMPERANCE,  PAUPERI.SM  AND 
CRIME." 

^  1133.  It  is  provided  by  the  first  section  of  said  act,  that,  Intoxicating 
liquors,  except  as  therein  provided,  shall  not  be  sold,  or  kept  for  sale, 
or  with  intent  to  be  sold,  by  any  person,  for  himself  or  any  other 
person,  in  any  place,  whatsoever ;  nor  shall  it  be  given  away  (except 
as  a  medicine,  by  physicians  pursuing  the  practice  of  medicine  as  a 
business,  or  for  sacramental  purposes,)  nor  be  kept  with  intent  to  be 
given  away  in  any  place  whatsoever,  except  in  a  dwelling  house  in 
which,  or  in  any  part  of  which,  no  tavern,  store,  grocery,  shop,  boarding 
or  victualing  house,  or  a  room  for  gambling,  dancing,  or  other  public 
amusement  or  recreation  of  any  kind  is  kept ;  nor  shall  it  be  kept  or 
deposited  in  any  place  whatsoever,  except  in  such  dwelling  as  above 
tlescribed,  or  in  a  church,  or  place  of  public  worship,  for  sacramental 
purposes,  or  in  a  place  where  either  some  chemical,  mechanical  or 
medicinal  art,  requiring  the  use  of  liquor,  is  carried  on  as  a  regular 
branch  of  business,  or  while  in  actual  transportation  from  one  place 
to  another,  or  stored  in  a  warehouse  prior  to  its  reaching  the  place  of 
its  destination.  This  section. shall  not  apply  to  liquor  the  right  to  sell 
which  in  this  state  is  given  by  any  law  or  treaty  of  the  United  States.' 

^  1134.  The  second  and  third  sections  of  said  act  provide  for  the 
licensing  persons  to  sell  intoxicating  liquors  for  specified  purposes,  and 
the  manner  in  which  the  same  shall  be  sold.     It  is  also  declared  by  the 

'  Laws  1855,  ch.  231,  ^1. 


436  API'KNDIX. 

third  section  that  nothing  in  said  act  contained  shall  he  construed  to 
prevent  the  sale  by  legal  process  (in  case  of  the  insolvency  of  the 
authorized  liquor  seller)  of  any  licjuors  held  hy  him  at  the  time  of  such 
insolvency,  to  any  other  licjuor  seller  authorized  to  sell  by  said  act, 
nor  to  prevent  the  legal  representatives  of  any  deceased  i)ers<»n  (who 
at  the  time  of  his  decease  was  an  authorized  licjuor  seller)  from  selling 
any  such  liquors  as  may  come  to  their  possession  as  property  of  such 
deceased  liquor  seller,  to  any  person  authorized  by  saiil  act  to  sell 
liquor. 

i5  1  i'i'^-  The  twenty-second  section  of  said  act  declares  that,  Nothing 
in  said  act  shall  be  construed  so  as  to  prevent  the  sale  of  cider,  in 
quantities  not  less  than  ten  gallons.  But  no  cider  so  sold  shall  be 
drank  on  the  premises  of  the  seller,  and  any  such  drinking,  or  a 
re-purchase  by  the  seller  of  a  portion  of  the  cider  sold  by  him,  shall 
subject  him  to  the  penalties  provided  by  section  third  of  said  act.  Nor 
shall  said  act  be  construed  so  as  to  prevent  the  manufacturer  of  alcohol 
or  of  pure  wine  from  grapes  grown  by  him,  from  keeping  or  from 
selling  such  alcohol  or  wine,  nor  the  importer  of  foreign  liquors  from 
keeping  or  selling  the  same  in  the  original  packages,  to  any  person 
authorized  by  this  act  to  sell  such  li(iuors.  Nor  shall  any  provision  of 
said  act  be  construed  to  prohibit  the  manufacture  or  keeping  for  sale, 
nor  from  selling,  burning  fluids  of  any  kind,  perfumery,  essences,  drugs, 
varnishes,  nor  any  other  article  which  may  be  com[)Osed  in  part  of 
alcohol  or  other  spirituous  licjuors,  if  not  adapted  to  use  as  a  beverage, 
nor  intended  to  be  used  as  a  beverage,  or  in  evasion  of  said  ac^.  Nor 
shall  it  be  lawful  to  seize,  sell  or  destroy  any  liquors  deposited  or  found 
in  any  bonded  warehouse  within  the  limits  of  this  slate,  nor  jtrevent 
any  liquors  imported  into  the  United  States  from  being  taken  from  any 
such  bonded  warehouse  to  any  place  beyond  the  limits  of  this  state. 
The  term  "  intoxicating  licjUor,'  and  "  li(iuor,''  as  used  in  this  a<-t,  shall 
be  construed  to  extend  to  and  include  alcohol,  distilled  and  malt  liquors, 
and  all  licpiors  that  can  intoxicate,  and  all  drugged  li(juors,  and  mixed 
li(juors,  i)arl  of  which  is  alcohol,  distilled  or  mall  licjuor. 

3  1  \'ii>-  Section  fourth  declares  that,  Every  i)erson  who  shall  violate 
any  provision  of  either  of  the  jtreccding  secti<)ns',  shall,  upon  conviction, 
be  adjudged  guilty  of  a  misdemeanor,  and  except  for  failure  to  file  his 
return  or  make  his  entries  as  in  the  last  section  provided,  shall  forfeit 
all  the  liipior  kept  by  him  in  violation  of  either  of  the  preceding  sec- 
tions, and  be  punished  as  follows  :  For  any  violation  of  section  first, 
for  the  first  oflence,  by  a  fine  of  fifty  dollars  ;  for  the  .second  offence, 
bv  a  fine  of  one  luuidred  dollars,  and  thirty  days'  im|irisonment ;  for 
the  third  and  every  subsequent  oflence,  by  a  fine  of  ni»t  less  than  one 
hundred,   nor  more   than   two    hundred   and   fifty   dollars,  and   by 


APPENDIX.  437 

imprisonment  not  less  than  three  nor  more  than  six  inrmihs.  For  :my 
violation  of  section  second  or  third,  by  a  fine  of  one  hundred  dollars 
and  by  imprisonment  in  the  county  jail  not  less  than  thirty  days,  and 
be  ever  thereafter  disqualified  from  selling  li(iuor  within  this  state. 
Upon  every  conviction,  the  defendant  shall  also  be  required  to  pay  all 
costs  and  fees,  as  provided  by  said  act.  In  defaultof  payment  of  any  such 
fine,  costs  and  fees,  or  any  i)art  thereof,  the  defendant  shall  be  com- 
mitted until  the  same  are  paid,  not  less  than  one  day  per  dollar  of  the 
amount  unpaid.  If  any  person  i)urchasing  any  liquor  as  in  the  last 
section  provided,  shall  at  the  time  make  any  false  statement  concerning 
the  use  to  which  such  liquor  is  to  be  applied,  he  shall  be  deemed  guilty 
of  a  misdemeanor,  and  upon  conviction  thereof,  shall  forfeit  and  pay 
a  fine  of  ten  dollars  and  costs,  as  provided  in  said  act,  and  stand 
committed  until  paid,  not  less  than  one  day  per  dollar  of  the  amount 
unpaid. 

^  1137.  Section  fifth  declares  that,  Every  justice  of  the  peace 
police  justice,  county  judge,  city  judge,  and  in  addition,  in  the  city 
of  New  York,  the  recorder,  each  justice  of  the  Marine  court, 
and  the  justices  of  the  District  courts,  and  in  all  cities  where 
there  is  a  recorder's  court,  the  recorder  shall  have  [)Ower  to  issue 
})rocess,  hear  and  determine  charges,  and  punish  for  all  otlences  arising 
under  any  of  the  provisions  of  said  act,  and  they  are  each  thereby 
authorized  and  recjuired  to  hold  courts  of  special  sessions  for  the  trial 
of  such  otlences,  and  under  said  act  to  do  all  other  acts  and  exercise 
the  same  authority  that  may  be  done  or  exercised  by  justices  of  the 
peace  in  criminal  cases  and  by  courts  of  special  sessions,  as  the  same 
are  now  constituted ;  and  the  term  "  magistrate,"  as  used  in  said  act, 
shall  be  deemed  to  refer  to  and  include  each  officer  named  in  said 
section.  Such  court  of  special  sessions  shall  not  be  required  to  take 
the  examination  of  any  person  brought  before  it  upon  charge  of  an 
ofi'ence  under  said  act,  but  shall  proceed  to  trial  as  soon  thereafter  as 
the  complainant  can  be  notified ;  and  for  good  cause  shown  he  may 
adjourn,  from  time  to  time,  not  exceeding  twenty  days.  At  the  time 
of  joining  issue,  and  not  after,  either  party  may  demand  trial  by  jury, 
in  which  case  the  magistrate  shall  issue  a  venire  and  cause  a  jury  to 
be  summoned  and  empanneled  as  in  other  criminal  cases  in  courts  of 
special  sessions. 

g  1138.  Section  sixth  provides  that,  Whenever  complaint  on  oath  or 
affirmation  shall  be  made  in  writing  to  any  magistrate  by  one  or  more 
credible  persons,  resident  of  the  county  where  the  complaint  is  made, 
or  of  an  adjoining  county,  that  he  or  they  have  reason  to  believe,  and 
do  believe,  that  intoxicating  liquor  is  kept  or  deposited  in  violation  of 
any  provision  of  section  first  of  said  act,  whether  the  person  so  keeping 


438  ATPENniX. 

or  depositing  the  same  is  or  is  not  known  to  the  complainant,  in  some 
sptM-ified  place  or  i>la('es  within  the  rily  or  town  within  whi«h  such  rom- 
j'lainl  is  made,  or  iijwn  any  water  adjacent  thereto,  or  within  five  hundred 
yanis  o(  the  hoiindarics  thereof,  which  coinj)hiint  shall  state  the  farts 
and  circumstances  upon  which  such  belief  is  founded,  or  such  facts 
and  circumstances  shall  be  stated  upon  oath  or  allirmation  of  some 
other  person,  it  shall  l)e  the  duty  of  such  magistrate,  if  he  is  satisfied 
that  there  is  jirobablc  cause  for  said  belief,  forthwith  to  issue  a  warrant, 
directed  in  the  same  manner  as  criminal  processes  are  now  directed, 
commandinu;  the  officer,  with  proper  assistance,  ft»rthwith  diligently  to 
search  such  i)lace  or  places,  and  to  seize  all  intoxicating  litjuor  found 
therein,  which  from  said  complaint  or  other  j)roof  furnished,  said 
magistrate  shall  be  satisfied  there  is  probable  cause  for  believing  is 
kept  in  violation  of  any  provision  of  section  first,  together  with  the 
vessels  in  which  the  same  is  contained,  and  to  store  the  same  in  some 
safe  and  convenient  place,  to  be  disposed  of  as  thereinafter  provided. 
If  from  such  complaint  or  proof,  or  both,  the  person  so  keeping  or 
depositing  said  liquor  shall  be  made  known  or  ascertained  to  the 
satisfaction  of  said  magistrate,  he  shall  issue  a  separate  warrant  for 
the  arrest  of  such  person  to  be  dealt  with  according  to  the  provisions 
of  said  act.  But  no  warrant  shall  be  issued  under  said  act  to  search 
any  such  dwelling  house  as  is  described  in  section  first  of  this  act, 
unless  the  occupant  thereof  shall  have  been  convicted,  as  thereinbefore 
provided,  of  having  sold  intoxicating  liquor  in  his  dwelling  house,  or 
suffered  it  to  be  done,  within  one  year  next  j^receding  the  issuing 
thereof.  Every  warrant  so  issued  shall  particularly  describe  the  place 
to  be  searclied,  and  the  things  to  be  seized. 

31139.  Section  seventh  provides  that.  Whenever  any  liquor  shall 
be  seized  under  any  |)rovisions  of  said  act,  it  shall  be  the  duty  of  the 
officer  by  whom  such  seizure  is  made,  except  in  cases  where  the  owner 
thereof  shall  have  been  arrested,  forthwith  to  give  written  notice  to 
the  owner  or  his  agent,  if  known,  of  the  seizure  of  such  licjuors,  which, 
and  the  vessels  containing  the  same,  shall  be  described  in  such  notice, 
as  near  as  may  be,  and  of  the  name  of  the  magistrate  by  whom  the 
warrant  was  issued,  or  in  case  of  seizure  under  section  twelfth,  before 
whom  the  jterson  arrested  was  carried,  and  the  name  and  residence  of 
Buch  f»fficer  making  such  seizure,  and  flie  time  of  such  seizure.  Such 
notice  shall  be  served  by  delivering  it  to  the  owner  or  his  ngent, 
personally,  or  by  leaving  the  same  at  his  last  or  usual  j)laco  of 
residence,  with  a  person  of  mature  age  residing  on  the  prenuses.  If 
the  owner  or  his  agent  cannot  be  found,  and  his  place  of  residence  is 
not  known  to  the  officer,  such  notice  shall  be  served  by  delivering  the 
same  to  any  person  of  mature  age,  residing,  or  being  employed  in  the 


APPENDIX.  439 

place  in  which  such  liquor  was  contained,  or,  if  none  such  can  he 
ibund,  hy  posting  the  same  in  a  conspicuous  place  upon  the  outer  door 
of  such  place,  and  copies  of  such  notice,  containing  also  a  descrii)tion 
of  the  place  in  which  such  liquor  was  found,  shall  be  frjrthwith 
conspicuously  posted  in  nt  least  three  public  places  within  said  city  or 
town. 

^1140.  Section  tenth  provides  that,  Whenever  any  lifjuor  seized 
under  any  provision  of  said  act,  shall  not  be  adjudged  forfeited,  the 
oHicer  having  the  same  in  custody  shall  return  it  to  the  place  where  it 
was  seized  ;  but  when  it  shall  be  adjudged  forfeited,  as  provided  in  any 
section  of  said  act,  or  whenever  any  trial  shall  have  resulted  adversely 
to  the  defendant,  and  the  time  fur  serving  notice  of  appeal  shall  have 
elapsed  and  no  notice  and  undertaking  shall  have  been  served,  or  the 
judgment  appealed  from  shall  have  been  finally  decided  adversely  to 
the  defendant,  and  notice  thereof  given  to  the  magistrate  before  whom 
the  trial  was  had,  it  shall  be  the  duty  of  such  magistrate  forthwith  to 
issue  a  warrant  commanding  that  the  liquor  so  seized  and  forfeited  be 
destroyed.  And  the  oHicer  to  whom  the  same  shall  be  delivered, 
shall  forthwith  proceed  in  the  presence  of  one  of  the  complainants,  or 
of  some  other  person  to  be  designated  in  such  warrant,  and  to  be 
summoned  by  him  to  execute  the  same,  and  such  person  shall  join  with 
the  officer  in  making  return  by  affidavit,  of  the  time,  place  and  manner 
of  the  execution  of  such  warrant,  and  upon  the  receipt  of  said  return 
said  magistrate  shall  order  execution  to  issue  to  said  officer,  who  shall 
proceed  to  sell  the  vessels  which  contained  the  said  liquor,  and  the 
proceeds  of  said  sale  shall  be  applied  in  like  manner  as  provided  by 
said  act  in  other  cases. 

^  1141.  Section  eleven  provides  that.  Whenever  complaint  on  oath 
or  affirmation  in  writing,  which  complaint  shall  state  the  facts  and 
circumstances  upon  which  his  belief  is  founded,  shall  be  made  before 
any  magistrate,  by  any  person,  that  he  has  just  cause  to  suspect  and 
believe,  and  does  believe,  that  any  ofTence  against  any  provision  of 
said  act  has  been  committed,  and  that  some  other  person  or  j)ersons 
named  by  him,  has  or  have  knowledge  of  the  commission  of  such 
oflence,  such  magistrate,  if  bethinks  there  is  probable  cause  to  believe 
that  such  offence  has  been  committed,  and  that  such  person  or  persons 
has  or  have  knowledge  of  the  commission  of  such  oflence,  shall 
forthwith  issue  a  summons  to  the  person  or  persons  so  named,  com- 
manding him  or  them  to  appear  before  him,  at  a  place  and  time  not 
more  than  four  days  thereafter,  to  be  designated  in  such  summons,  to 
testify  in  relation  to  such  complaint.  Such  summons  may  be  served 
in  the  same  or  in  an  adjoining  county,  by  any  officer  to  whom  the  same 
shall  be  delivered,  or  by  any  other  person  by  stating  the  contents  or 


440  ArriiNDix. 

(lolivoriiii;  a  ropy  ihoreof  to  l!ii>  jicrsnii  or  persons  natmnl  tluMoin.  and 
at  tlip  same  lime  sliowini^  him  c»r  them  the  original.  If  the  person  or 
persons  so  summoned,  shall  fail  to  appear,  the  mafristrate.  u^K»n  proof 
of  the  service  of  su<*h  summons,  by  the  return  of  an  olVicer.  or  the 
oath  of  any  other  i>erson,  shall  issue  an  attachment  to  compel  their 
attendance  for  the  purpose  of  giving  such  testimony,  which  attachment 
may  he  executed  in  any  part  of  the  state.  The  person  so  attac^hed 
may,  unless  some  reasonable  cause  or  excuse  be  shown  by  his  own 
oath,  or  the  oath  of  some  other  person,  be  punished  by  fine  of  not 
less  than  ten  dollars,  and  in  default  of  payment  he  may  be  committed 
to  the  same  extent  as  provided  in  the  fourth  section. 

^  1142.  Section  twelfth  of  said  act  provides  that,  It  shall  be  the 

duty  of  every  sherilf,  under  sheriir,  deputy  sherilT,  constable,  marshal, 

or  policeman,  to  serve  all  processes  to  be  issued  by  virtue  of  said  act, 

to   arrest  any  person   whom   he   shall   see   actually   engaged  in  the 

commission  of  any  ofTence  in  violation  of  the  first  section  of  said  act, 

and  to  seize  all  liquors  kept  in  violation  of  said  section,  at  the  lime  and 

{)lace  of  the  commission  of  such  offence,  together  with  the  vessels  in 

which  the  same  is  contained,  and  forthwith  to  convey  such  person 

before  any  magistrate  of  the  same  city  or   town,  to    be  dealt  with 

according  to  law,  and  to  store  the  liquor  and  vessels  so  seized  in  some 

convenient  place,  to  be  disposed   of  as  is  thereinafter  provided.     It 

shall   be  the  duty  of  every  oflicer  by  whom  anv  arrest  and   seizure 

shall   be  made  under  said  section,  to  make  complaint,  on  oath,  against 

the  person  or  persons  arrested,  and   to  prosecute  such  complaint  to 

judgment  and  execution.     It  shall  be  the  duty  of  every  such  oflicer, 

whenever  he  shall  see  any  intoxi<-ated  person  in  any  store,  hotel,  street, 

alley,  highway,  or  public  place,  or  disturbing  the  public   peace  and 

quiet,  to  apj)rchen(l  such  j^erson,  and  take  him  before  some  magistrate, 

and  if  said  magistrate  shall,  after  due  examination,  deem  him  too  much 

intoxicated  to  be  examined,  or  to  answer  upon  oath  correctly,  he  shall 

direct  sairl  oflicer  to  keep  him  in  some  jail,  lock  up,  or  other  safe  and 

convenient  place,  to  be  designated  by  said  magistrate,  until  he  shall 

become  sober,  and  thereupon  forthwith  to  lake  iiim  before  the  said 

magistrate,  or  if  he  cannot  be  found,  before  some  other  magistrate  ; 

and  whenever   any  person   shall    appear   or   be   brouL^ht   before  any 

magistrate,  as    provided    in   said   or   the    preceding   section,  it   shall 

be  llic  duty  of  such  magistrate  to  administer  to  such  person  an  oath 

or  aflirmation,  and  to  examine  him  as  to  the  cause  of  such  intoxication, 

and   for  the   purpose  of  ascertaining  whelher  any  ofl'encc  has  been 

committed  against  any  provisions  of  said  act.     If  upon  such  examination 

it  shall  appear  that  any  such  «)flence  has  l)ecn  committed,  within  the 

juri.sdiclion  of  such  magistrate,  it  shall  be  his  duty  to  issue  a  warrant 


APPRNDIX.  441 

for  the  arrest  of  the  oflender  and  the  search  of  liis  premises,  a8  there- 
inbefore provided.  If  it  shall  ai)p('ar  that  any  such  ofletire  has  heen 
committed  at  any  place  beyontl  the  jurisdiction  of  such  magistrate,  it 
shall  be  his  duty  to  reduce  such  examination  to  writing,  and  forthwith 
to  certify  and  send  the  same  to  any  officer  or  magistrat(;  having 
jurisdiction  of  the  oflcnce  charged,  who  shall  thereupon  [)roceed  in 
relation  to  such  complaint,  in  the  same  manner  as  if  the  same  had  been 
made  before  him.  If  any  witness  shall  refuse  to  be  sworn  or  afTirmcd, 
or  to  answer  any  question  j)ertinent  to  such  examination  or  trial  other 
than  such  as  will  criminate  himself,  he  shall  be  committed  to  the 
common  jail  of  such  county,  there  to  remain  until  he  shall  consent  to 
be  sworn  or  affirmed,  and  to  answer  all  questions  pertaining  to  such 
trial  or  examination.  It  shall  be  unlawful  for  any  person  to  be,  or 
become  intoxicated  in  any  store,  grocery,  tavern  or  public  place,  and 
for  each  offence  he  shall  be  liable  to  a  fine  of  ten  dollars,  to  be  sued 
for  and  recovered  in  the  same  manner  as  fines  in  the  fourth  section  of 
said  act,  and  in  default  of  the  payment  thereof,  he  shall  stand  committed 
as  provided  in  said  fourth  section  ;  and  it  shall  be  the  duty  of  the 
magistrate  before  whom  such  intoxicated  person  is  arraigned,  to 
examine  such  person  as  a  witness  relative  to  the  cause  of  such  intoxica- 
tion, to  ascertain  whether  any  other  person  has  violated  the  provisions 
of  said  act ;  but  the  testimony  so  given  shall  not  in  any  case  be  used 
against  him,  in  any  civil  or  criminal  action,  except  upon  an  indictment 
and  trial  for  perjury.  All  such  fines  shall  be  applied  to  the  support  of 
the  poor  of  the  city  or  town  where  the  offence  is  committed. 

^  1143.  The  thirteenth  section  provider  that,  All  liquors  seized  under 
any  provision  of  said  act,  except  in  cases  where  the  owner  thereof 
shall  have  been  arrested,  shall  be  kept  stored  for  thirty  days  after 
service,  and  posting  of  notices,  as  required  by  section  seventh,  after 
which  time,  upon  the  proof  of  such  service  and  posting  by  the  return 
of  the  oflicer  indorsed  upon  the  warrant  of  search,  or  by  other 
evidence  to  that  effect,  such  liquors,  together  with  the  vessels  in  which 
the  same  were  contained,  shall  be  adjudged  forfeited  by  the  magistrate 
named  in  such  notice,  to  whom  such  proof  shall  have  been  made, 
unless  they  shall  have  been  claimed  as  thereinbefore  provided  ;  and  all 
liquors  and  vessels  in  which  they  are  contained,  which  shall  have  been 
found  and  seized  in  the  possession  of  any  person  who  shall  have  been 
arrested  for  violating  any  provision  of  the  first  section,  and  not  claimed 
by  any  other  person,  shall,  upon  conviction  of  such  person  of  such 
offence,  be  adjudged  forfeited. 

§1144.  Warrants  for  the   arrest  of  offenders,  and   to  search   for 
intoxicating  liquors  kept  or  deposited  in  violation  of  the  provisions  of 
said  act,  are  criminal  process ;  and  the  rules  regulating  the  form  and 
57 


442  AITKNDIX. 

manner  of  issiiiii!:!;  other  rriiniiial  jiroccss,  must  apply  to  them.  It 
must  appear  upon  the  face  of  such  pr«»re.ss,  in  what  town  or  city  it 
was  issued,  and  it  must  l)c  under  the  hand  of  the  magistrate  issuing  it, 
hut  it  nceii  not  l»e  under  seal  ;  and  it  must  he  dire<'ted  to  the  ollicer  to 
whom  the  same  is  dcMvercd  for  execution.  It  should  ai>j)ear  uj)on 
the  face  of  the  warrant  for  search  for  such  intoxicating  H(juor,  that  it 
had  been  shown  to  the  magistrate  issuing  the  same  by  oath  or  alTirm- 
alion,  that  there  was  reason  to  believe  that  intoxicating  li(jUor  was  kept  or 
deposited  in  violation  of  some  provision  of  the  first  section  of  said  act, 
in  some  specified  place  or  places  within  the  city  or  town  within  which 
the  complaint  is  made,  and  the  magistrate  resides,  or  upon  any  water* 
adjacent  thereto,  or  within  five  hundred  yards  of  the  boundaries 
thereof,  and  shall  command  the  ofiicer  forthwith  diligently  to  search 
such  place  or  places,  and  to  seize  all  intoxicating  liijuors  found  therein, 
together  with  the  vessels  in  which  the  same  were  contained,  and  to 
store  the  same  in  some  convenient  place,  to  be  disposed  of  as  in  said 
act  is  provided.  If  the  place  to  be  searched  be  a  dwelling  house,  in 
which,  or  in  any  part  of  which,  no  tavern,  store,  grocery,  shop, 
boarding  or  victualling  house,  or  room  for  gambling,  dancing,  or  other 
public  amusement  or  recreation  of  any  kind,  is  kej»t,  then  it  should 
appear  upon  the  face  of  the  warrant,  that  the  occupant  thereof  had 
been  convicted  under  the  provisions  of  the  said  act  of  having  sold 
intoxicating  li(]Uor  in  his  dwelling  house,  or  sutfered  it  to  be  done, 
within  one  year  next  preceding  the  issuing  thereof.  Every  warrant 
so  issued  shall  particularly  describe  the  place  to  be  searched,  and  the 
things  to  be  seizetl.'  Under  such  warrant,  the  officer  to  whom  the 
same  is  directed  and  delivered,  may  seize  the  liquor  so  described  in 
the  place  or  places  so  designated  ;  and  he  may  break  open  all  doors 
necessary  for  him  to  execute  such  warrant,  after  a  proper  demand  of 
leave  to  enter,  and  refusal.  Such  search  should  be  made  in  the  day- 
lime,  unless  the  warrant  exjiressly  authorize  a  search  at  night.  No 
authority  seems  to  be  given  to  seize  such  liquor  at  any  other  place 
than  that  designated  in  the  comj>lainl  and  warrant,  and  if  it  should  be 
removed  elsewhere,  the  olficer  should  not  seize  it  under  such  warrant. 
,^  1115.  If  the  warrant  be  against  the  person  so  keejiing  or  depositing 
such  intoxicating  liquor,  it  should  show  upon  its  face  llmt  complaint 
had  been  made  before  such  magistrate,  as  in  the  warrant  for  search, 
and  that  it  api»earcd  from  such  complaint,  or  the  proof  taken  before 
him,  to  the  satisfaction  of  said  magistrate,  that  the  defendant  therein 
namwl  wa.s  the  per.son  so  keeping  or  depositing  such  li(juor  in  violation 
of  the  provisions  of  the  said  act ;  and  it  shall  command  the  officer  to 

'  Lawi  1866,  ch.  231,^0. 


APPENDIX.  443 

whom  the  same  is  directed  and  delivered  for  execution,  forthwith  to 
arrest  such  ])ersun  and  brin£T  him  before  such  magistrate,  to  be  dealt 
with  according  to  the  provisions  of  the  said  act.  There  is  nothing  in  the 
act  restricting  the  arrest  of  the  party  to  any  particular  place,  and  it  is 
conceived,  therefore,  that  such  warrant  may  be  executed,  like  other 
criminal  process,  in  any  other  i)art  of  the  county  or  the  state,  if  pro{)erly 
indorsed,  and  the  same  rules  would  apjily  to  an  arrest  in  such  case,  as  to 
arrests  on  other  criminal  i)rocess.  When  the  arrest  is  made,  the  de- 
fendant should  be  brought  forthwith  before  the  magistrate  issuing  the 
process,  but  if  he  is  absent,  or  his  oOice  is  vacant,  then  he  should  be 
brought  before  some  other  magistrate  of  the  same  county.' 

g  1140.  It  is  declared  that  at  the  time  of  joining  issue  in  any 
proceedings  under  the  said  act,  and  not  after,  either  party  may  demand 
trial  by  jury,  in  which  case  the  magistrate  shall  issue  a  venue  and 
cause  a  jury  to  be  summoned  and  empaneled  as  in  other  criminal  cases 
in  courts  of  special  sessions.'  Such  venire  may  be  executed  by  the 
sheriff  of  the  county,  or  his  deputy,  as  well  as  by  a  marshal  or 
constable  of  the  city  or  town,  if  the  same  is  directed  and  delivered  to 
them  for  execution.^  The  manner  of  executing  such  venire  will  be 
found  elsewhere.*  The  same  qualifications  of  jurors  are  requisite 
as  in  other  cases,  but  in  addition  thereto,  it  is  declared  that  no  person 
who  shall  iiave  been  convicted  of  any  ollence  against  any  provision  of 
said  act,  or  who  shall  be  engaged  in  the  sale  or  keeping  intoxicating 
liquor  contrary  to  the  provisions  of  said  act,  shall  be  competent  to  act 
as  a  juror  upon  any  trial  under  any  provision  of  said  act.' 

g  1147.  Process  to  compel  the  attendance  of  witnesses,  and  to 
punish  witnesses  and  jurors  for  non-attendance,  shall  be  executed  by 
the  officer  to  whom  the  same  is  directed  and  delivered,  in  the  same 
manner  as  in  civil  actions  before  justices  of  the  peace.®  If  any 
witness  shall  refuse  to  be  sworn  or  affirmed,  or  to  answer  any  question 
pertinent  to  such  examination  or  trial,  or  other  than  such  as  shall 
criminate  himself,  he  shall  be  committed  to  the  common  jail  of  such 
county,  there  to  remain  until  he  shall  consent  to  be  sworn  or  affirmed, 
and  to  answer  all  questions  pertaining  to  such  trial  or  examination." 

§  1148.  In  case  any  person  other  than  an  officer  shall  not  make  out 
a  prima  facie  case  before  the  magistrate  upon  the  trial  of  any 
complaint  under  the  first  section  of  said  act,  and  it  shall  appear  to  the 
court  that  he  acted  maliciously,  or  in  bad  faith,  or  without  probable 
cause,  in   making  such  complaint,  the  court  shall  render  judgment 

1  Ante,  ^72.  s  Laws  1865,  ch.  231,  ^16.         •  Laws  1865,  ch.  231,  <il2. 

«  Laws  1855,  ch.  231,  ^5.  «  M.  %1,  11,  21. 

•Id.  ^12.  Ante,  ^f>191,  &c. 
*  Ante,  ^<J138,  &c. 


•U-i  Ai'ri:Ni)i.\. 

ngainst  such  person  ami  in  favor  of  ihe  ilefemlant  for  costs,  and  issue 
execution  thereon,  nirainsl  the  projuTly  an<l  i>erson,  in  the  same  manner 
as  in  civil  actions  before  justices  of  the  peace.' 

,5  1 1  in.  All  executions  issued  upon  the  final  determination  of  any 
appeal  adversely  to  the  defendant,  to  rnljecl  the  judgment  thereon, 
shall  he  in  the  name  of  the  peoi)le  of  the  stale  of  New  York  against 
the  proportv  ajul  j^erson.  If  any  execution  so  issued  shall  he  returned 
unsatisfied,  in  whole  or  in  j»art,  the  district  attorney  may,  and  he  is 
authorized  by  said  act,  to  bring  an  action  upon  such  undertaking,  in  the 
name  of  the  people  of  the  state  of  New  York,  and  recover  thereon 
the  amount  of  such  judgment  and  costs.* 

^  lir»0.  When  process  is  issued  in  any  other  case,  upon  any  judg- 
ment against  one  convicted  under  any  of  the  provisons  of  the  said 
act,  it  will  be  the  duty  of  the  oll'icer  to  whom  such  j)rocess  is  directed 
and  delivered  for  execution,  to  execute  the  same  according  to  the 
command  thereof.  Such  officer  will  not  be  entitled  to  receive  any 
fees  thereon  from  the  defendant,  for  all  such  fees  are  required  to  be 
included  in  the  judgment,  but  his  fees  therefor  are  to  be  audited  and 
paid  in  the  same  manner  as  in  other  criminal  cases." 

^1151.  When  any  fine  shall  be  imposed  upon  any  party,  for  the 
violation  of  the  provisions  of  the  said  act,  in  default  of  payment  of 
any  such  fine,  costs  and  fees,  or  any  part  thereof,  the  defendant  shall 
be  committed  until  the  same  are  paid,  not  less  than  one  day  per  dollar 
of  the  amount  luipaid.^  In  any  county  in  which  there  now  is,  or 
hereafter  n>ay  be  a  penitentiary,  the  court  before  which  any  conviction 
is  had  for  an  offence  against  any  provision  of  said  act,  may,  in  its 
discretion,  sentence  and  commit  the  i»erson  convicted  to  such  peniten- 
tiary, instead  of  the  jail  of  such  county,  and  whenever  the  punishment 
under  any  provision  of  said  act  is  imprisonment  or  commitment,  it 
shall  be  a  commitment  to  the  penitentiary  or  county  jail  without  the 
liberties  thereof.' 

5  1 1'i'i'  When  an  appeal  shall  have  been  brought  from  any  judgment 
of  any  magistrate  rendered  under  any  provision  of  said  act,  and  notice 
shall  have  been  given  to  the  oflicer  holding  the  warrant  of  such 
magistrate  for  executing  such  judgment,  of  such  appeal,  and  of  the 
giving  the  necessary  undertaking,  all  further  proceedings  on  such 
judgment  .shall  be  stayed,  until  such  a|)]>eal  shall  be  decided,  or 
dismissed  for  want  of  prosecution,  as  in  said  act  is  provided.*  But  the 
bringing  such  aj>pcal  will  not  authorize  the  sheriff  to  release  the 
defendant,  if  he  be  in  his  custody,  but  he  must  retain  him  in  prison  as 
if  no  such  ai»i>eal  ha<l  been  brought. 

iLawi  1866,  ch.  281,^14.       »  M.  ^21.  »  Id.  ^19. 

1  Id.  ifi.  *  IJ  <)*■  '  I'l  <^- 


APPRNDIX.  445 

^  1153.  In  all  cases,  if  the  district  attorney  shall  appearand  conduct 
the  trial  or  appeal,  or  both,  the  costs,  if  any,  shall  go  to  him  for  his 
individual  use,  in  other  cases  to  the  complainant.'  Whenever  any 
fine  imposed  under  any  provision  of  said  act,  except  when  otherwise 
especially  provided,  shall  be  collected,  it  shall  be  paid,  together  with 
all  costs,  to  the  overseer  of  the  poor  of  the  town  in  which  the  offence 
is  committed,  for  the  support  of  the  poor,  in  cases  where  such  expenses 
are  paid  by  the  town  ;  and  where  the  poor  are  supported  by  the  county, 
then  to  the  county  treasurer.'^ 

3  1154.  No  person  shall  maintain  an  action  to  recover  the  value 
or  possession  of  any  intoxicating  liquor  sold  or  kept  by  him,  which 
shall  be  purchased,  taken,  detained  or  injured  by  any  other  person, 
unless  he  shall  prove  that  such  liquor  was  sold  according  to  the 
provisions  of  said  act,  or  was  lawfully  kept  and  owned  by  him.^ 

^  1155.  It  is  declared  by  section  twentieth  that,  Every  public  ollicer 
who  shall  neglect  or  refuse  to  perform  any  duty  required  of  him  by 
said  act,  shall,  upon  conviction  thereof,  be  adjudged  guilty  of  a 
misdemeanor,  and  shall  be  punished  by  a  fine  not  exceeding  five 
hundred  dollars,  or  imprisonment  not  exceeding  one  year,  or  by  both 
such  fine  and  imprisonment ;  such  conviction  shall  work  a  forfeiture 
of  olTice  in  all  cases,  except  those  of  judicial  officers.  Any  person 
who  shall  directly  or  indirectly  oppose  or  resist  any  officer  or  any  one 
called  by  him  to  his  aid  in  the  execution  of  any  duty  under  said  act, 
shall  be  deemed  guilty  of  a  misdemeanor,  and  punished  by  a  fine  of 
not  less  than  two  hundred  dollars,  and  by  imprisonment  not  less  than 
six  months.  The  existing  provisions  of  law  relative  to  misdemeanors 
and  oflences,  shall  apply  to  offences  created  by  said  act,  except  where 
the  same  are  inconsistent  therewith. 

^  115G.  The  following  fees  are  given  by  said  act  to  any  sheriff",  or 
other  officer,  performing  the  following  services : 

For  serving  summons  for  witnesses,  for  each  person  served,  twenty- 
five  cents. 

For  executing  any  warrant  of  search,  or  making  any  seizure  without 
process,  one  dollar. 

For  conveying  liquor  seized  to  place  of  storage,  fifty  cents,  besides 
necessary  expenses  of  labor,  cartage  and  storage. 

For  executing  warrant  for  destruction  of  forfeited  liquor,  besides 
actual  expense,  one  dollar. 

For  conveying  certified  complaint  to  any  magistrate,  twenty-five 
cents. 

For  every  mile  necessarily  traveled,  more  than  one,  in  performing 
any  of  the  above  services,  six  cents.* 

I  Laws  1855,  ch,  231,  $5.        2  Id.  <)U.  » Id.  (>16.  <  Id.  f>21. 


446  AITKNOIX. 

2.    8TOI,EN     PROPEBTY. 

^  1 1  Ti?.  The  duties  of  criminal  olFirers  in  the  retaininc;  .ind  disposition 
of  stolen  property,  have  been  j)ointe(l  out.'  Spetiuj  provisions  have 
been  made  in  relation  thcret<i  in  the  cities  of  New  York  an«l  Brooklyn. 
It  is  provide<l  that  when  any  ijoods,  chattels  or  money  shall  have 
been  taken  from  any  person  or  persons  in  cither  of  said  cities, 
charged  with  the  commission  of  any  crime  or  misdemeanor,  the  same 
shall  be  immediately  conveyed  to  a  police  court  and  be  delivered  to  the 
property  clerk,  who  shall  take  charge  of  the  same, to  bo  delivered  to  the 
person  entitled  thereto  in  the  manner  jtointed  out  in  the  act.'  With 
the  delivery  of  such  property,  at  such  ]>olice  court,  the  duties  of  the 
officer  making  the  arrest  or  seizure  of  the  proj)erty  will  be  at  an  end. 
But  such  otlicer  should  take  a  jir()j)er  receijH  of  the  delivery  thereof, 
for  it  is  farther  provided  that  any  officer  or  other  person  offending 
against  the  provisions  of  the  said  act,  shall,  upon  conviction  thereof,  be 
deemed  guilty  of  a  misdemeanor,  and  be  punished  by  imprisonment  in 
the  penitentiary  for  not  less  than  six  months,  or  by  fine  not  exceeding 
one  thousand  dollars,  or  both,  in  the  discretion  of  the  court.' 

3.    DUTIES    OF    SHERIFFS    IN    SUPPRESSING    RIOTS. 

5  1158.  The  act  providing  for  compensating  parties  whose  property 
may  be  destroyed  in  consequence  of  mobs  and  riots,  declares  that, 
Whenever  the  mayor  of  any  city,  or  the  sheriff  of  any  county,  shall 
be  notified  by  any  party  of  any  threat  or  attempt  to  destroy  or  injure 
such  person's  property  by  any  mob  or  riot,  it  shall  be  the  duty  of  such 
officer,  on  the  receipt  of  such  notice,  to  take  legal  means  to  protect 
the  properly  att.icked  or  threatened  ;  and  any  such  officer  who  shall 
refuse  or  neglect  to  perform  his  duty,  shall  be  liable  to  the  party 
aggrieved  for  such  damages  as  said  i)arty  may  have  sustained  by  reason 
thereof,  provided  such  jiarty  shall  elect  to  bring  his  action  against 
such  officer,  instead  of  such  city  or  county.  But  every  such  action 
must  be  brought  within  three  months  after  the  loss  or  injury.* 

5  1159.  The  powers  and  duties  of  shoritl's  in  suppressing  riots,  will 
be  found  elsewhere.  They  may  demand  the  aid  of  every  private 
citizen,  and  of  any  brigade,  regiment,  battalion  or  military  company 
within  such  city  or  county.  What  will  be  necessary  to  be  done  by 
the  officer  in  order  to  avoid  the  responsibility  incurred  under  the 
provisions  of  the  late  act  for  neglect  of  duty,  must  dej^end  upon  the 
particular  circumstances  of  each  case,  and  the  character  aiuJ  extent 
of  the  threatened  danger.     The  officer  must  use  all  reasonable  and 

«  Ante,  <>81.  «  Lawn  1866,  cb.  199,  <A.        *  Laws  1866,  ch.  428,  ^68,  6. 

» Id.  (,2. 


APrENDIX.  447 

proper  efTorts  to  prevent  the  threatened  injury,  sucli  as  are  within  his 
power,  and  siudi,  as  in  the  exercise  of  a  sound  discretion,  may  he  deemed 
necessary.  If  he  does  this  fairly,  no  responsibiUty  can  attach  to  fiim, 
whatever  may  he  the  result.  The  sheriff  would,  in  such  case,  be 
entitled  to  a  reasonable  compensation  for  his  services,  and  any  neces- 
sary and  proper  exj)enses  incurred  by  liim  in  the  discharge  of  such 
duty. 

4.    COMPENSATION  OF    THE    MIMTIA  CALLED  OUT  IN  AID  OF  THE  CtVIL 
AUTHORITIES. 

^  IIGO.  All  ofTicers,  non-commissioned  officers,  musicians  and 
privates  of  the  uniformed  militia  of  this  state,  while  on  duty  or 
assembled  therefor,  pursuant  to  the  order  of  the  sherifT  of  any  county, 
or  the  mayor  of  any  city,  in  cases  of  riot,  tumult,  breach  of  the  peace, 
resistance  to  process,  or  when  called  upon  in  aid  of  the  civil  authorities, 
shall  receive  the  compensation  provided  by  the  twenty-first  section  of 
the  act  entitled  "An  act  to  enforce  the  laws  and  preserve  order," 
passed  April  15,  1845;  and  such  compensation  shall  be  audited  and 
allowed  and  paid  by  the  board  of  su})ervisors  of  the  county  wherein 
such  service  is  rendered,  and  shall  be  a  portion  of  the  county  charges 
of  such  county,  to  be  levied  and  raised  as  other  county  charges  are 
levied  and  paid  ;  and  such  is  declared  to  be  the  true  meaning  and 
construction  of  the  act  entitled  "  An  act  to  provide  for  the  enrolment 
of  the  militia  and  the  organization  of  uniform  corps,  and  the  discipline 
of  the  military  forces  of  this  state,"  passed  April  17,  1854  ;  and  the 
services  of  the  militia  in  aid  of  the  civil  authorities,  rendered  since 
the  passage  of  the  last  named  act,  shall  be  compensated  and  paid,  as 
provided  in  this  act,  and  such  compensation  shall  be  audited,  levied 
and  raised  as  therein  directed.' 

^  1161.  Such  board  of  sujiervisors  shall  also  audit,  allow,  and  pay, 
and  levy,  and  raise,  as  county  charges,  such  reasonable  expenses  as 
may  have  been  incurred  since  the  passage  of  said  act  of  April  17, 
1854,  or  may  hereafter  be  incurred  in  the  transportation  of  arms, 
munitions,  equipments,  men  and  horses,  and  for  subsistence  and  other 
necessary  expenses  of  the  commissariat  and  military  departments  in 
the  cases  mentioned  in  the  last  section,  and  such  is  declared  to  be  the 
true  meaning  and  construction  of  the  said  act  passed  April  17,  1854.' 

^  IIG'2.  The  compensation  mentioned  in  the  foregoing  section  as 
provided  by  section  twenty-first  of  the  act  of  1845,  is  as  follows: — 
To  each  private,  the  sum  of  one  dollar  per  day  ;  to  each  non-commis- 
sioned officer  and  musician,  the  sum  of  one  dollar  and  twenty-five 

1  Laws  1855,  ch.  228,  §1. 
s  Id.  ^2. 


448  ArrENDix. 

cents  per  day  ;  and  to  all  conunissioned  ofl'icers  of  the  line,  and  to  the 
field  and  statl  otl'icers,  the  saino  compensatiftn  as  is  j)aitl  to  olVicers  of 
the  army,  in  the  service  of  the  Unile<l  States,  together  with  all 
necessary  rations  aiid  forage,  and  for  tlio  horses  of  any  mounted  men, 
one  dollar.* 

5.   ArroiNTMr.NT  ok  criers  kor  courts.  • 

'^  IIO.M.  Heretofore,  the  duly  has  been  imposed  uj^on  the  sheriff,  his 
dejiuty,  and  constables,  attending  any  court,  where  the  services  of  a 
crier  were  required,  to  act  as  such  crier  ;"  but  the  legislature  has 
authorized  the  county  judge  of  each  of  the  counties  of  this  state  to 
appoint,  from  lime  to  time,  as  shall  be  necessary,  a  suitable  jierson  to 
discharge  the  duties  of  crier  of  the  courts  of  record  to  be  held  in  and 
for  said  county ;  such  person  to  be  paid  the  same  compensation  and  in 
the  same  manner  as  justices  of  the  sessions  are  now  paid,  and  to  hold 
his  office  during  the  jileasure  of  the  said  county  judge.'  If  the  county 
judge  shall,  in  pursuance  of  such  authority,  appoint  such  crier,  the  sheriff 
and  his  deputies,  and  constables,  will  be  relieved  from  such  duty.  In 
case  of  his  failure  to  do  so.  however,  or  of  the  absence  of  such  person 
from  any  such  court  it  will  still  be  their  duly  to  act  as  criers. 

fi.    SF.BVICE    OF    PROCESS     0\    FOREIGN    CORPORATIONS. 

^  lic.t.  Every  insurance  and  other  corporation  created  by  the  laws 
of  any  other  slate,  doing  business  in  this  slate,  shall,  within  thirty  days 
after  the  j»assage  of  this  act,  designate  some  person  residing  in  each 
county  where  such  corporation  transacts  business,  upon  whom  process 
issued  by  authority  of,  or  under  any  law  of  this  slate,  may  be  served, 
and  within  the  time  aforesaid  shall  file  such  designation  in  the  office  of 
the  secretary  of  stale  ;  and  a  copy  of  such  designation,  duly  certified 
by  said  officer,  shall  be  evidence  of  such  appointment.  And  it  shall 
be  lawful  to  serve  on  such  person  so  designated,  any  process  issued  as 
aforesaid  ;  such  service  shall  bo  made  on  such  person  in  such  manner 
as  shall  be  j>rescribed  in  case  of  service  required  to  be  made  on  any 
resident  of  this  state,  and  such  service  shall  be  deemed  to  be  a  valid 
gervice  thereof.* 

2  llO.'i.  In  all  cases  where  such  designation  shall  not  be  made  aa 
afore.said  and  such  foreign  corporation  cannot  be  served  with  such  process 
according  to  the  present  j)rovisions  of  law,  it  shall  be  lawful  to  serve 
such  process  on  any  j)orson  who  shall  bo  found  within  this  slate  acting 
as  the  agent  of  said  corporation,  orxloing  business  for  them." 

»  L»w»  1M6,  ch.  09,  ^l.        »  Laws  1866,  ch.  630.  O.        ♦  L."*"-*  1866,  ch.  279.  61. 
«  Ante,  V;1&1,  1068..  » Id.  </:. 


APPENDIX.  449 

^  llfiO.  Service  made  in  acconlaiire  willi  any  provisif)n  of  said  act, 
sliail  be  as  eHeclual  as  if  made  in  the  lorm  and  manner  reiiuired  by 
law,  and  shall  be  deemed  a  full  compliance  with  any  statute  requiring 
personal  or  other  service  to  be  made.' 

§  ll«)7.  'I'he  term  "  process,"  in  said  act,  shall  be  held  and  deemed  lu 
include  any  writ,  summons  or  order  whereby  any  action,  suit  or 
proceeding  shall  be  commenced,  or  which  shall  be  issued  in  or  upon 
any  action,  suit  or  proceeding,  by  any  court,  ollicer  or  magistrate." 

^  11(58.  When  any  process  shall  be  delivered  to  the  sheritT  for 
service  ujion  a  foreign  corjioration,  it  will  be  his  duty  to  execute  it, 
whether  such  corporation  has,  in  pursuance  of  the  foregoing  provisions, 
designated  any  person  on  whom  such  service  may  be  made,  or  not ; 
and  if  he  finds  that  such  designation  has  been  made,  he  shall  make 
service  of  such  process  upon  him,  in  the  same  manner  as  if  he  was  an 
officer  of  the  cori)oration  within  the  stale.  If  no  such  designation  has 
been  made,  he  may  then  make  the  service  in  like  manner  upon  any 
person  in  his  county  acting  as  agent  of  such  corporation,  or  doing 
business  for  them  ;  and  his  return  of  such  service  should  show  that 
the  person  served  had  been  designated  by  such  corporation,  on  whom 
process  against  such  corporation  might  be  served.  If  no  person  has 
been  so  designated,  and  the  service  is  made  upon  an  agent  or  party 
doing  business  for  the  corporation,  the  return  should  show  that  no 
person  had  been  so  designated,  and  that  the  person  upon  whom  the 
service  was  made  was  acting  as  agent  for  said  company  within  this 
slate,  or  that  he  was  doing  business  for  it,  as  the  fact  may  be. 

7.     ATTACHMENTS    AGAINST    SHIPS. 

^  11G9.  The  lien  given  by  statute  to  creditors  upon  ships  or  vessels 
has  been  extended  to  debts  contracted  by  the  builders  thereof,  as  well 
as- by  the  master,  owner,  agent  or  consignee.  And  it  is  declared  that. 
When  the  ship  or  vessel  shall  depart  from  the  port  at  which  she  was 
when  such  debt  was  contracted,  such  debt  shall  cease  to  be  a  lien  at 
the  expiration  of  sixty  days  after  the  return  of  such  vessel  to  such 
port,  and  in  all  cases  such  lien  shall  cease  immediately  after  the  vessel 
shall  have  left  such  port,  unless  the  person  having  such  lien  shall  within 
ten  days  after  such  departure,  cause  to  be  drawn  up  specifications  of 
his  lien,  the  correctness  of  which  to  be  sworn  to  by  such  person,  his 
agent  or  his  legal  representatives,  and  filed  in  the  county  clerk's  office 
of  the  county  in  which  such  lien  shall  be  created.  The  county  clerk 
of  every  county  in  this  slate,  shall  provide  and  keep  a  book  which  shall 


>  Laws  1856,  ch.  279,  ^3. 
2  Id.  ^4. 


58 


450  APPENDIX. 

be  called  '*  liens  on  ships  and  vessels,"  in  which  shall  be  entered 
al|)hal>etically  the  names  (tf  such  ship  or  vessel  if  she  have  any,  and 
opjHJsite  ti»  them  the  name  of  the  ))erson  claiming  such  lien,  the  amount 
of  such  lien,  and  the  time  of  filing  such  si)ecification,  and  the  said 
clerk  shall  in  every  such  case,  receive  the  sum  of  fifty  cents  ;  such 
book  to  be  open  to  public  inspection  and  examination.' 

8.    WARRANTO    OF    THE    COMPTROLLER  AGAINST    RAILROADS. 

^  1  no.  The  act  providing  for  the  estai)lishmcnl  of  a  board  of  railroad 
commissioners,  declares  that  the  sherilT  shall  execute  the  warrant  of 
the  comptroller  against  any  railroad  coinj>any  \vhi(!h  shall  make  default 
in  the  payment  of  its  proportionate  share  of  the  salaries  of  the  com- 
missioners, at  the  times  the  same  is  required  to  be  paid,  against  the 
goods  and  chattels  and  real  estate  of  said  company,  to  be  collected  in 
the  same  manner  as  on  executions  out  of  the  supreme  court."  No 
form  is  prescribed  for  such  warrant,  nor  is  it  declared  when  or  where 
the  same  shall  be  made  returnable,  but  it  is  presumed  that  it  was  the 
purpose  of  the  legislature  to  make  it  correspond  in  these  respects,  as 
far  as  possible,  with  executions  on  judgments  in  the  supreme  court. 
Tlie  warrant,  therefore,  should  be  executed  in  the  same  manner  as  an 
execution  against  the  company,  and  returnc<l  to  the  comptroller  within 
sixty  days  after  its  receipt  by  the  slierilV,  together  with  the  amount  to 
be  collected  thereon,  or  so  much  thereof  as  shall  be  collected.  The 
shcrifT  would  be  undoubtedly  entitled  to  the  same  fees  on  executing 
such  warrant,  as  on  any  such  execution.  No  i»roperty  of  such  company 
would  be  exempt  from  levy  and  sale.  If  it  is  necessary  to  sell  the 
real  estate  of  the  company  thereunder,  it  must  be  advertised  and  sold, 
as  80  much  land.  Only  so  much  can  be  sold  as  lies  within  the  county 
to  which  the  warrant  issues.  The  franchise,  or  charter  of  the  company 
cannot  be  sold  on  the  warrant. 

'  Laws  1866,  cb.  110,  ^^1, 2,     «  Laws  1866,  ch.  626,  ^8. 


FORMS. 


FORMS  FOR  SHERIFFS. 
No.  1. 

OATH    OF    OFFICE    OF    SHERIFFS,  CORONERS   AND    CONSTABLES. 
Ante  C/;3,  14,  884,  08G. 

I  do  solemnly  swear  (or  anirm)  that  I  will  support  the  constitution 
of  the  United  States,  and  the  constitution  of  the  state  of  New  York, 
and  that  I  will  faithfully  discharge  the  duties  of  the  office  of  sheriff 
(under  sheriff,  deputy  sheriff,  or  coroner)  of  the  county  of  (or 

of  constahle  of  the  town  of  )  according  to  the  best  of  my 

ability. 

No.   2. 

sheriff's  bond. 
Ante,  ^^3,  &c. 
Know  all  men  by  these   presents,  that  we  are  held  and 

firmly  bound  unto  the  people  of  the  state  of  New  York,  in  the  penal  sum 
of  thousand  dollars  ;  for  which  payment  well  and  truly  to  be 

made,  we  bind  ourselves,  our  heirs,  executors  and  administrators, 
jointly  and  severally,  firmly  by  these  presents.  Sealed  with  our  seals 
and  dated  the  day  of  January,  18 

Whereas,  the  above  bounden  hath  been  elected  to  the  office 

of  sheriff  of  the  county  of  at  the  general  (or  at  a  special) 

election   held  therein  on  the  day  of  Now 

therefore,  the  condition  of  the  above  obligation  is  such  that  if  the  said 
shall  well  and  faithfully  in  all  things  perform  and  execute  the 
office  of  sheriff  of  the  said  county  of  during  his  continuance 

in  the  said  office  by  virtue  of  the  said  election  without  fraud,  deceit  or 
oppression,  then  the  above  obligation  to  be  void,  or  else  to  remain 
in  full  force.  (L.  S.) 

Sealed  and  delivered  in  the  (L.  S.) 

presence  of  (L.  S.) 


452  FORMS    rOR  SIIHRIFFS. 

.^o.  J. 

BdMt  t.wrs     UY     ONE    ArmiNTKD    TO    KILL    A     VACANCY. 

Anlc,  ^12. 
Wherens  the  above  bounden  has  licen   appointed   by  the 

governor  of  the  slate  of  New  York,  to  execute  the  duties  of  the  office 
of  sherifT  of  the  county  of  during  the  vacancy  therein,  caused 

by  the  death  of  late  sheriff  of  said  county,  (or,  caused  by  the 

resicnation  or  removal  from  olfice  of  late  sheriff  of  said  county), 

Now  therefore,  the  condition,  etc. 


3fo.    1. 

RENEWED    BOND. 

Ante,  ^3. 
Whereas  the  said  was  duly  elected  sheriff  of  the  county  of 

at  the  general  (or  at  a  special)  election  held  therein  on  the 
dav  of  18  ;  and  whereas,  the  said  did   duly 

enter  upon  the  duties  of  the  said  office  and  hath  continued  in  said  office 
until  this  time,  and  now  is  the  sheriff  of  said  county  ;  Now  therefore, 
the  condition,  &c. 


^o.   5. 

OATH    or    THE    SIRETV. 

Ante,  ^8. 

County  of  ss.  the  surety  in    the  within  bond   being 

severallv  duly  sworn,  each   for  himself  says  that  he  is  a  freeholder 

within  the  state  of  New  York,  and  is  worth  the  sum  of  thousand 

dollars,  over  and  above  all  debts  whatsoever  owing  by  him. 

Subscribed  and  sworn  before  me  A.  B. 

this  day  of  18  C.  D. 

R.  H.. 
Clerk  of  county. 

]Vo.  «. 

clerk's    approval    to    he    INDORdED    ON    THE    HOND. 
Antt',  <yl. 
1  approve  of  the  within  bond,  as  to  its  form  and  manner  of  execution 
as  well  as  to  the  sufficiency  of  the  surety. 

U.  H., 
Clerk  of  county. 


FORMS  FOR   SHERIFFS.  453 


Mo.  T. 

clerk's    certificate    that    the    HIIERIKF    has    aUALIFIED. 
Ante,  <fi. 

County  of  ss.     I  certify  that  H.  C,  sherifT  elect  of  the  county 

of  has  this  day  taken   the  constitutional  oath  of  office,  and 

caused  the  same,  together  with  the  bond  required  by  law,  duly 
approved  by  me,  by  my  certificate  thereof,  indorsed  thereon,  to  be 
filed  in  my  oflice. 

In  witness  whereof  I  have  hereunto  set  my  hand  and  affixed 

(L.  S.)      my  seal  of  office  this  day  of  January,  18 

R.  H., 

Clerk  of  county. 


No.  §. 


\ 


ASSIGNMENT    RY    THE    OLD    SHERIFF    TO    THE    NEW    SHERIFF. 

Ante,  (;G. 

THIS  INDENTURE,  made  the  day  18 

between  late  sheriff*  of  the  county  of  of  the  one  part, 

and  now   sheriff'  of  the    said    county,  of  the    other    part,  as 

follows :  Whereas,  the  said  has  this  day  served   on  the  said 

the  certificate  of  the  clerk  of  the  said  county,  that  the  said 
has  taken  the  constitutional  oath  of  office,  and  has  caused  the 
same,  with  the  bond  required  by  statute,  duly  approved  by  said  clerk' 
to  be  filed  in  the  office  of  the  clerk  aforesaid  :  Now  therefore,  this 
indenture  witnesseth  that  the  said  as  such  late  sheritT  as 

aforesaid,  in  pursuance  of  the  statute  in  such  case  made  and  provided, 
hath  delivered  possession  and  set  over  to  the  said  as  such 

sheriff!",  the    county  jail  of   the  said  county  and  the  appurtenances  ; 
and  also  the  following  processes,  papers  and  prisoners,  to  wit : 

A  summons  and  complaint  and  copies  thereof,  in  the  supreme  court, 
at  the  suit  of  against  dated  A.  B.,  Attorney. 

A  summons,  affidavits  and  order  of  Hon.  W.  J.  B.,  a  justice  of 
the  supreme  court,  and  copies  thereof,  to  hold  the  defendant  to  bail  in 
the  sum  of  $  wherein  is  plaintiff"  and  defendant.     A. 

B.,  Attorney. 

An  execution  upon  a  judgment  in   the    supreme   court,  in  which 
is  plaintiff"  and  defendant,  for  8  rendered 

18  received  18,  at  o'clock,  P.  M. 

A.  B.,  Attorney. 

An  execution  against  the  body  of  at  the  suit  of  for 

$  docketed  and  received  A.  B.,  Attorney. 


454  FORMS  Foil  SIIKIUITS. 

The  tiefendant  lias   been  arrested  thereunder,  ami  is  now  upon  the 
liberties  of  the  jail  of  said  couuly. 

Also,  the  bond  of  said  with  as  his  surety,  for  the 

liberties  of  said  jail,  in  the  jiennlty  of  8  and  dated  18 

Also,  the  body  of  confined  in  the  said  jail  for  grand  larceny 

upon  the  warrant  of  commitment  of  the  recorder  of  the  city  of 
and  also  the  said  warrant. 

Ako.  the  jail  records,  now  at  the  jail ;  tliree  stoves  ;  blankets  ; 

cords  of  wood,  Ate. 

In  \viiness   whereof,  the  said   party  of  the   first   jiart  has   hereunto 
affixed  his  seal  and  name  of  ollice  the  day  and  year  first  above  written. 
A.  B.,  late  Sheriff  of  county.      (L.  S.) 

No.  9. 

ACKNOWLEDGMENT      OF      THE      NEW    SHERIFF    OF      THE      RECEIPT    OF    THE 
JA1L3,    ETC.,    INDORSED    ON    A    DUPLICATE    OF    SUCH    INDENTURE. 

Ante,  ^6. 

I  acknowledge  the  receipt,  this  day  of  January,  18 

of  the  projierly,  processes,  documents  and   prisoners  sj^ecified  in  the 
indenture  between  late  sheriff  of  county,  and  myself, 

as  present  sheriff  of  said  county,  of  which  the  within  is  a  duplicate. 

H.  C,  Sheriff  of  county. 


:\o.  10. 

DESIGNATION    OF    PLACE    OF    KEEPING    THE    SHKRIFf's    OFFICE. 

Ante,  (>23. 
To  all  whom  it  may  concern :  Take  notice,  that  the  office  of  the 
sheriff  of  county  will  be  kept  at  in  the  of 

in  said  county.     Dated  18 

H.  C,  Sheriff  of  countv. 


IVo.  11. 

APPOINTMENT    OP    UNDER    SHERIFF,    DEPUTIES,    ETC. 

Aiito,   ^14. 

Know  all  men  by  these  presents,  that  I,  the  undersigned,  sheriff  of 
the  county  of  do  hereby  apjwint  of  in  saiil 

county,  under  sheriff,  (deputy  sheriff,  or  deputy  sheriff  and  jailer)  in 
and  for  said  county. 

In  witness  whereof  I  have  hereunto  set  my  hand  anrl  seal  this 
day  of  18  II.  C  Sheriff.     (L.  S.) 


FORMS  FOR  SIIFRIFFS.  455 


No.  13. 


DEPUTIES      UOND. 
Ante,  ^^18,  21. 

Know  all  men  by  these  presents,  that  we  are  held  and  fiirnly 

hound  unto  sherill'  of  the  county  of  and   state  of 

New  York,  in  the  sum  of  thousand  dollars,  to  be  paid  to  the 

said  or  his  certain   attorney,  executors,  adtninistrators  or 

assigns  :    for  which  payment,  well  and  truly   to  be  made,  we  bind 
ourselves,  our  heirs,  executors  and  administrators,  jointly  and  severally 
firmly  by  these  presents.     Sealed  with  our  seals  and  dated  the 
day  of  in  the  year  one  thousand  eight  hundred  and 

Whereas,  the  above  bounden  has  been  appointed  to  the 

office  of  under  sheriff  (deputy  sheriff,  or  deputy  sheriff  and  jailer)  of 
the  said  county  of  by  the  said  as  such  sheriff: 

Now  the   condition   of  this   obligation    is  such,  that  if  the   above 
bounden  shall  well  and  faithfully  execute  and  discharge  the 

duties  of  the  said  office  of  sheriff  during  his  continuance 

therein,  without  any  deceit,  fraud,  delay,  neglect  or  oppression,  and 
shall  save  harmless  and  indemnify  the  said  his  executors  and 

administrators  from  and  against  all  acts  or  doings,  or  neglect  of  duty 
of  him  the  said  as  such  sheriff,  and  pay  off  and  discharge 

and  save  him  harmless  of  and  from  all  judgments,  penalties,  fines, 
costs  charges  and  damages  in  any  action  or  proceeding  that  may  be 
brought  against  the  said  as  such  sheriff,  by  reason  of  any  act 

or  omission  done,  committed  or  suffered  by  the  said  as  such 

sheriff;  and  will  likewise  pay  and  discharge  and  save  the 
said  harmless  from  any  costs  and  expenses  he  may  incur  or  be 

put  to  in  defending  any  action  or  proceeding  commenced  against  him 
as  such  sheriff,  by  reason  of  any  acts  or  doings,  or  neglect  of  duty  of 
him  the  said  as  such  sherifi',  whether  such  action  or 

proceeding  is  rightfully  brought  against  the  said  as  such 

sheriff,  or   not ;  and    that   the   said  will   pay   to   the    said 

as  such  sheriff,  his  proportion  of  the  legal  fees  received  by 
him  the  said  at  any  time,  as  such 

sheriff  as  aforesaid  ;  ar.a  also  that  the  said  will,  at  the 

termination  of  his  appointment  as  such  sheriff,  account  to  and 

with  the  said  his  representatives,  assigns  or  duly  authorized 

atrent,  for  all  moneys  collected  or  received  by  him  as  such 
sheriff  as  aforesaid,  including  all  legal  fees  for  services  as  such 
sherifl',  and  will  pay  over  all  moneys  collected  by  him  as  aforesaid  and 
remaining  in  his  hands,  as  well  as  the  portion  or  share  of  the  legal  fees 
received  by  him  the  said  as  such  sheriff  as  aforesaid  ; 


456  FORMS   FOR  SIlIuRIFFS. 

tlu'ii  ihis  obligation  to  he  void,  otherwise  to  remain  in  full  force  and 
virtue.  (L.  S.) 

Signeil,  sealed  and  delivon-d  in  (K.  S.) 

the  presence  of  (L.  S.) 

No.  13. 

ACKNOWLEDGMENT    OV    llOND    nV    r.\RTIE.>'. 

County  of  ss.     Personally  aj^peared  before  me  this 

day  of  to  me  known  to  be  the  persons  described  in  and  who 

executed  the  foregoing  instrument,  and  who  severally  acknowledged 
that  they  executed  the  same  for  the  uses  and  |)ur|>oses  therein  men- 
tioned. A.  13.,  Justice  of  the  peace  of  said  county. 

No.  II. 

REaUEST    TO    APPOINT    A    SPECIAL    DEPUTY. 
Auto,  <)\8. 
To  II.  C,  Esq., 

Sheriff  of  county  : 

Please  to  deputize  as  special  (lej>uty  at  the  instance  and 

request  of  the  plaintiff  and  at  his  peril,  (or,  at  my  instance  and  peril), 
to  execute  a  writ  of  execution  against  property  at  the  suit  of 
against  for  S  docketed  in  the  office  of  the 

clerk  of  county  ;  and  for  so  doing,  this  shall  be  your  indemnity. 

(Signed)         A.  B. 

No.  li. 

DEPUTATION    OF    SPECIAL    DEPI/TY. 
Ante,  <:;14. 
I  hereby  deputize  and  appoint  A.  13.,  of  to  execute  the 

within  (attachment  against  defaulting  witnesses),  according  to  the 
exigency  thereof.     Dated,  18 

II.  C,  Sheriff  of  county. 

No.  16. 

ADMIHrtKjN     OK    KECKIPT    OK    PROCESS    HV    THE    SIIKKIKF. 
Ante,   <yZ'J. 

The  Peoj.le  )      Benrli  warrant  of  district  attorney  of  county, 

agst.  >  against  the  defendant  upon  an  indictment  in  said  county 
A.  13.        )  for  forgery,     Dated  Received  by  me  for 

execution,  18  H.  C,  Sheriff. 


FORMS  FOR  SIIFRIFFS.  457 

No,  17. 

Tin:    SAME    IN    CIVIL    ACTIONS. 

Supreme  Couiit. 

A.  B.      ^      Exerution  for  8  on  a  judgment  renrlered 

agst.       >  and  docketed  in  county,  with  directions  indorsed 

C.  D,       1  to  levy  and  collect  8  and  interest  from 

besides  fees,  (or  summons  and  complaint  and  capies,)  dated 
Received  by  me  this  day  of  18  at 

o'clock.  H.  C,  Sheriff  of  county. 


!«o.  1§. 

RETURN    TO    WARRANT    ON    ARREST    OF    CRIMINAL. 

I  have  arrested  the  within  named  defendant,  and  have  him  now  here 
in  my  custody,  as  I  am  within  commanded.     Dated  18 

H.  C,  Sheriff. 
(Or,  H.  C,  Sheriff, 

By  A.  B.,  Deputy, 
Or  C.  D.,  Constable.) 


No.  19. 

RETURN    WHERE    ALL    THE     DEFENDANTS    CANNOT    BE    FOUND. 

I  have  arrested  the  within  named  and  have  him  now  here  in 

my  custody,  as  I  am  within  commanded  ;  but  the  within  named 
cannot  be  found.  H.  C,  Sheriff. 


No.  20. 

RETURN    WHERE    THE    MAGISTRATE     ISSUING    THE    WARRANT    IS    ABSENT. 

Ante,  $^71,  72. 
I  have  arrested  the  within  defendant  as  I  am  within  commanded  ; 
and  I  further  return  that  on  making  such  arrest,  I  forthwith  brou<^'-ht 
the  said  defendant  to  the  office  of  the  magistrate  before  whom  the 
within  warrant  is  made  returnable,  but  that  said  magistrate  was  then 
absent  therefrom  and  could  not  be  found,  to  proceed  upon  the  said 
warrant.  H.  C,  Sheriff. 

59 


458  I'OUMS  FOR  SHERIFFS. 

RETl'RV    WIIERF.    TIIK  MACISTRATr.   ISSLINC  THE    WAKRANT    HAS    GONE 
OUT    OK    OKKME. 

I  have  arrested   the  within  (h-fcmlaiit  as  I   am   within  commanded  ; 
and  I  further  return,  that  at  the  time  of  such  arrest,  the 

magistrate  issuinu  the  within  warrant,  ha<i  ceased  to  be  such  magistrate, 
hv  theex|)iration  of  his  term  of  oHice.  (or  by  resignation  of  his  said  office, 
or  removal  from  ofllce,  or  removal  from  the  town,  or  county.)     Dated 
18  H.  C,  Sheriff. 

!Vo.39. 

ENDORSEMENT    OF    WARRANT. 
Ante,  <//j2,  73. 

County  of  ss.     It  a]>pearing  satisfactorily  to  me  by  the  oath 

of  that  the  signature  of  to  the  within  warrant,  is  in 

the  hand-writing  of  said  the  justice  of  the  peace  within 

mentioned  ;  I  do  therefore  hereby  authorize  the  person  bring- 

ing this  warrant,  or  any  other  officer  to  whom  such  warrant  may  be 
directed,  to  execute  the  same  in  said  county  of 

A.  B.,  Justice  of  the  Peace  of  county. 

IVo.23. 

tETURN  TO    SL'Cn    WARRANT    WHERE    THE    DEFENDANT    DESIRES  TO  BE   LET 
TO  BAIL  IN  THE  COUNTY   WHERE   ARRESTED. 

I  have  arrested  the  within  defendant,  in  pursuance  of  the  within 
warrant,  and  of  the  indorsement  thereon.     Dated  18 

11.  C,  Sheriff  of  county. 

IVo.94. 

CERTIFICATE    OF    MARISTRATE    LETTING    THE    PRISONER    TO    HAIL. 

1  certify  that  the  within  defendant,  having  been  brought  before  me 
by  the  officer  making  rtturii  thereto,  and  such  defendant  rccpiiring  to 
be  let  to  bail  by  me,  I  have  taken  his  recognizance  with  and 

of  in  said  county,  in  the  sum  of  lor  his  aj)- 

pearance  at  the  next  court  having  cognizance  of  the  offence,  in  the 
county  of  .'wi<l  have  delivered  .such  recognizance  and  this  war- 

rant to  such  olFicor.     ]>.ited  18 

(J.  A.,  Justice  of  the  Peace  of  county. 


FORMS  FOR  SHERIFFS.  459 

No.  35. 

RETURN   TO  SKAKCII   WARRANT. 

Ante,  <j79,  &c. 
I  have  execiUed  the  within  search  warrant  as  I  am  within  com- 
manded, by  inakinj^  (hli^'cnt  search  in  the  place  designated  in  the  said 
warrant  for  the  goods  therein   descriljed  ;    but  cannot    find  the  .said 
goods,  or  any  part  thereof.     Dated,  18 

11.  C, 

Sheriff  of  county. 

IVo.  26. 

THE  SAME  WHERE  GOODS  ARE  FOUND. 

I  have  executed  the  within  search  warrant,  as  I  am  within  com- 
manded, by  making  dih'gent  search  in  the  pla<;e  designated  in  said 
warrant ;  and  have  found  the  said  goods,  and  have  tliem  now  here,  as 
I  am  within  commanded.     Dated,  18 

H.  C, 

Sheriff  of  countv. 


Wo.  27. 

RETURN   OF  RESCUE  AND  RESISTANCE. 
Ante,  ^.3G. 
State  of  New  York,  i 

county,  ss.     )      I,  the  sheriff  of  said  county,  do  certify 
and  return  to  the  court  of  oyer  and  terminer  in  and  for  county, 

now  here,  that  by  virtue  of  the  within  warrant,  deHvered  to  me  for 
execution  on  the  day  of  1  did  on  the  day  of 

185  proceed,  as  by  the  said  writ  I  was  commanded,  to  exe- 
cute the  same ;  and  that  when  1  had  arrived  at  the  dwelling  of  the 
said  A.  B.,  in  in  said  county,  and  had  demanded  admittance 

after  having  duly  announced  the  purpose  of  my  coming,  I  was  resisted 
and  violently  assaulted  by  the  said  A.  B.  and  C.  D.,  his  son,  and  one 
E.  P.,  then  present,  and  was  violently  beat  and  bruised  by  the  said 
A.  B.,  C.  D.  and  E.  F. :  and  that  in  consequence  of  said  resistance  I 
was  unable  to  execute  the  said  writ  alone  or  with  the  aid  of  my  depu- 
ties, but  was  compelled  to  raise  the  power  of  the  county  to  aid  in 
enforcing  the  execution  of  the  same.     Dated  18 

H.  C, 

Sheriff  of  countv. 


460  rORMS    FOR   SHERIFFS. 

returv  of  rescue  and  rf.0istancb  to  an  execution. 

State  op  New  York,  ) 

county,  ss.      )      I,  the  sherilTof  said  county,  do  certify  and 
return  to  the  supreme  court  now  here,  that  hy   virtue  of  the  within 
execution,  to  me  directed  and  dehvered   for  execution,  I  did  on  the 
day   of  at  in   said   county,  duly  levy   uj)on 

and  take  into  my  possession,  certain  goods  and  chattels  of  the  defend- 
ant, to  wit:  and  that  while  I  had  the  same  in  my  possession, 
as  aforesaid,  and  while  taking  an  inventory  thereof,  I  was  violently 
assaulted  and  resisted  by  the  within  named  defendant,  and  by 
and  then  and  there  present,  aiding  and  abetting  him,  the  said 
defendant,  and  that  the  said  then  and  there  violently  seized 
and  carried  off  the  said  goods  and  chattels,  and  rescued  the  same  from 
such  levy ;  and  that  I  have  been  unable  to  obtain  possession  of  the 
same.     Dated                 18 

H.  C,  Sheriff  of  county. 

No.  29. 

ORDER     OF     THE      SHERIFF      FOR     Tim      MILITARY     TO     AID     IN     EXECUTING 

PROCESS,  ETC. 

Ante,  ^38. 

To  Brigadier  general,  A.  B., 

(or  Colonel  C.  D., 

or  Captain  E.  F.) 
Sir:    Having  been  this  day  resisted  in  the  execution  of  civil   (or 
criminal)  process,  I,  the  sherifl'of  county,  in  pursuance  of  the 

statute  in  such  case  made  and  provided,  do  hereby  require  the  military 
under  your  command  (or  at  least  men  of  the  military  under 

your  command)  armed  and  equipped  as  the  law  directs,  to  aid  me  in 
the  execution  of  said  process ;  and  that  you  report  yourself  forthwith 
to  me,  with  the  number  of  men  under  your  command,  ready  for  service 
at,  &c.     Dated  18 

A.  B.,  Sheriff  of  county. 

!f  o.  :io. 

TO    QUELL    A    RIOT,    ETC. 
Ante,  ()m. 

To  Brigadier  General,  Alc. 

Sir:    I,  the  sheriff  of  county,  do,    in    pursuance   of  the 

statutes  in  such  csmc  made  and  provided,  hereby  require  the  military  (or 


FORMS    FOR    SHERIFFS.  -IGl 

at  least  men  oC  tlie  military)  under  your  nornmand,  armed  and 

equip{)ed,  as  the  law  directs,  to  aid  in  (luellinj^  the  riot  at,  dec  ;  and 
that  you  report  yourself  forthwith  to  me,  with  the  number  of  men 
under  your  command  ready  for  service  at,  «&c.     Dated  18 

A.  B, 

Slieriir  of  county. 


No.  31. 

\ 

TO    PREVENT    THE    DESTRUCTION    OF    PROPERTY. 
Ante,  C/>38,  1158. 
To  Brigadier  General,  &c. 

Sir:  Having  received  information  that  certain  lawless  persons  have 
combined  and   threatened  (or  attempted)  to  destroy  the  dwelling  of 

at  and  having  been  notified  by  the  said 

of   such   threat   (or  attempt)   I   do,  therefore,  in    pursuance  of    the 
statute  in  such  case  made  and  provided,  require  the  military  (or 
men  of  the  military)  under  your  command,  armed  and  etjuipped  as  the 
law  directs,  to  aid  in   preventing  the  destruction  of  said  property  ; 
and  that  you  report  yourself  forthwith  (or  at  o'clock  ) 

to  me,  with  the  number  of  men  under  your  command  ready  for  service 
at,  &c.     Dated,  18  A.  B., 

Sheriff  of  county. 

No.  32. 

SUMMONS    FOR    CONSTABLE    TO    ATTEND    COURT. 
Ante,  149. 

Sheriff's  Office  of  County 

18 
To  A.  B.,  Constable  of  the  town  of  in  said  county  : 

Sir  :  You  are  hereby  summoned  to  attend  as  a  constable,  at  the 
sitting  of  the  supreme  court  at  the  court  house  in  the  of 

on  the  day  of  at  ten  o'clock  in  the  forenoon. 

H.  C,  Sheriff. 


No.  33. 

certificate  of  the  attendance  of  constables  at  court. 
County  of  ss.     I  certify  that  the  following  constables  were 

summoned  by  me  to  attend  the  sitting  of  the  supreme  court,  held  at 
the  court  house  in  the  of  commencing  on  the 

day  of  18  and  that   they  have  attended  as  such 


4G2  FORMS  FOR  SHERIFFS. 

constables,  the  niimher  of  days  set  opjKtsile  their  names  respectively. 
A.  \l.,  four  days. 
C.  IX,  five  days. 
Dated,  18  H.  C, 

Sheriff  of  county. 


No.  '.It. 

sheriff's    FROCLAMAPIiiV. 

Ante,  ^163. 

Proct.amatiov. — Whereas  a  court  of  oyer  and  terminer  is  appointed 
to  be  held  at  the  court  house  in  in  and  for  the  county  of 

on  the  day  of  18  prorlamalion  is  therefore 

hereby  made  in  conformity  to  a  precept  to  me  directed  and  dehvered 
by  the  district  attorney  of  county  on  the  day  of 

18  to  all  persons  bound  to  appear  at  the  said  oyer  and  terminer 

by  recognizance  or  otherwise,  to  appear  thereat,  and  all  justices  of 
the  peace,  coroners  and  other  officers  who  have  taken  any  recogni- 
zance for  the  appearance  of  any  person  at  such  court,  or  who  have 
taken  any  inquisition  or  the  examination  of  any  prisoner  or  witness, 
are  required  to  return  such  recognizance,  inquisition  and  examination 
to  the  said  court  at  the  opening  thereof,  on  the  fust  day  of  its  sitting. 

Given  under  my  hand  at  the  sherifTs  ofTice  in  the  of 

on  the  dav  of  18 

II.  C, 

Sherifl'  of  county. 


:Vo.35. 

RETURN    TO    THE    I'EECEl'T    OF     THE    DISTRICT    ATTORNEY. 
Ante,  ^151. 
County  of  ss.     I  have  executed  the  within  precept  as  I  am 

within  commanded,  by  having  duly  summoned  the  jurors  drawn  lor  the 
court  mentioned  therein,  to  a])pear  thereat  ;  by  making  immediate 
proclamation  as  therein  commanded,  and  causing  the  same  to  be 
published  in  a  pui)Iic  newspaper  printed  in  said  county  once  a  week 
from  the  rc<cipt  of  thf  said  j)recej)t,  until  the  time  apjxiinted  for  said 
court,*  and  by  having  the  |)risoners  in  jail  brought  before  the  court  with 
all  process  and  proceedings  in  any  way  concerning  them  in  my  hands. 
Dated  18  II.  ('., 

SherilT  of  county. 


FORMS    Foil  SUHRIFFS.  4G3 

If  o.  30. 

RETURN    TO     PRECKPT     WHEUC     Tim      rillSoNKKS      ARE    NUT    AM.    IJR(>I;guT 
INTO    COURT. 

Ante,  (^UA. 

The  same  as  the  last,  to  the  asterisk  ;  then  adfl,  "  and   that  I   am 

ready  to  bring  before  the  court  now  here  tlie  prisoners  in  jail  as  it 
may  direct." 

Dated  18  H.  C,  Sheriff  of  county. 


I¥o.  3T.  . 

DIRECTIONS    TO    DEPUTY    TO    SUMMON    JURORS,    AND    IIIS    RETURN. 

To  Dej.uty  Sheriff: 

You  will  summon  the  persons  named  below,  to  appear  at  the  court 
of  to  be  held  at  the  court  house  in  on  the  day 

of  next,  at  o'clock,  A.  M.,  as  grand  and  petit  jurors 

as  indicated  below,  opposite  their  respective  names.  They  are  to  be 
summoned  at  least  SIX  DAYS  before  the  first  day  of  the  court,  by 
notifying  each  of  them  personally,  that  they  are  drawn  as  such  jurors, 
and  informing  them  of  the  time  and  place  where  they  are  required  to 
attend  ;  or  if  they  cannot  be  found,  then  they  may  be  summoned  by 
leaving  at  their  respective  places  of  residence,  with  some  ])erson  of 
proper  age,  a  written  or  printed  notice  (copies  of  which  are  herewith 
enclosed).  And  you  will  return  this  to  me  as  soon  as  the  service  is 
complete,  and  previous  to  the  sitting  of  the  court,  first  noting  opposite 
the  names  of  the  persons  summoned  respectively,  the  time  when 
summoned,  and  the  manner  in  which  they  were  summoned,  whether 
personally  or  by  leaving  a  notice  at  their  respective  places  of  residence, 
and  signing  the  certificate  below. 

Yours,  &c., 

H.  C,  Sheriff  of  county. 


PERSONS    TO    BE    SUMMONED. 

Grand  Jurors,  A.  B., 
CD. 

Petit        "        E.  F. 

The  above  named  grand  and  petit  jurors  were  duly  summoned  by 
me  for  the  term  of  the  court  above  designated,  at  the  times  and  in  the 
manner  set  opposite  their  names  respectively. 

A.  B.,  Deputy  Sheriff. 


WHEN    SIM.MONED. 

HOW  SUMMONED. 

Mav  14,  18 
"■  17,  " 

'     18," 

Personally. 

By  leaving    notice   with  his 

wilV,  in   his  absence. 
Personally. 

■164  roR.Ms  vo\i  siii:iiii-i's. 


^o. :»»». 


NOTICB    TO    A    JI'llDR    Wllo    CANNOT    IlK    HfMMONKD    PERSONALLY. 

Air.  of  Alcrrhanl  : 

Sir  :  You  have  heon  tlrawn  to  serve  as  a      juror  at  a  court  of 
to  be  licKI  at  the  i-ourt  house  in  on  the  day  of 

at  10  o'clock,  A.  M.,  \vhero;it  vou  are  rcciuired  to  attend  without  fail. 

II.  C, 

JSheriir  of  county. 

If  o.  39. 

RETURN    OF     JIKV    LIST    OK    SUMMONrNO    JURY. 
Ante,  <>1G1. 

County  of  ss.     To  the  court  of  of  county, 

now  here  : 

I,  the  sheriff  of  said  county,  to  whom  the  within  lists  of  jurors  for 
said  court  were  delivered  for  service,  iierewith  return  the  same  to 
the  court  now  here  ;  and  I  certify  and  return  that  all  the  said  grand 
and  petit  jurors  therein  named,  were  duly  personally  summoned  to 
attend  said  court  at  the  time  and  place  mentioned  in  the  said  lists, 
at  least  six  days  previous  to  the  sitting  of  the  said  court ;  except 
A.  B.  and  C.  D.,  who  could  not  be  found,  but  who  were  in  like  manner 
duly  summoned  to  attend,  as  aforesaid,  by  leaving  at  their  respective 
places  of  residence,  with  persons  thereat  of  proper  age,  a  partly 
printed  and  jiartly  written  notice,  slating  that  they  were  drawn  as  such 
jurors,  and  designating  the  court,  time  and  place  at  wiiich  they  were 
required  to  appear;  and  E.  F.  who  has  removed  from  the  county, 
and  Ci.  II.  who  cannot  be  found  in  the  county,  and  who  has  no  known 
place  of  residence  therein.     Dated  18 

n.  c, 

Sheriff  of  county. 

^o.  lO. 

RKTUIIN    OF    M:W    GRAND    JIIIV    OR    TALKSMKN. 
Allto,  (;1C0,  <;ir,7. 

County  of  ss.      Pursuant  to  the  direction  of  the  court  of 

of  said  county,  now  iiere,  contained  in  the  annexed  certified 

copy  of  order  of  said  court,  I  have  summoned  the  following  persons  to 

appear  forthwith,  to  serve  as  grand  jurors  ((jr  petit  jurors),  to  wit  : 

A.  I*.,  farmer,  of  ;  C.  ]).,  mechanic,  of  ; 

II.  C,  Sheriir. 


FORMS  FOR  SHERIFFS.  465 

If  0.41. 

RETURN    TO    VENIRK    FOR    FGRDIGN    JURY. 

Ante,  ()WJ. 

The  execution  of  the  within  venire  will  appear  by  the  schedule 
hereto  annexed.  H.  C,  Sherill. 

(Attach  the  Clerk's  list  of  jurors  to  the  venire,  and  make  certificate 
thereon,  as  No.  3U.) 

I¥o.  12. 

PROOF    OF    SERVICE    OF    A    SUIIPCENA,  OR    SUMMONS    I\    A    CIVIL    CASE. 

Ante,  ^179. 

County  of  ss.  being  duly  sworn,  says  that  he  duly 

subpoenaed  (or  summoned)  the  several  persons  named  below,  at  the 
times  and  places  set  opposite  lo  their  respective  names,  by  delivering 
to  each  of  such  persons,  personally,  a  copy  of  the  subpccna,  (or  sum- 
mons) hereto  annexed,  (or  a  ticket  containing  the  substance  thereof) 
and  at  the  same  time  showing  to  each  of  them,  respectively,  the  an- 
nexed original  subpoena  (or  summons)  and  paying  to  each  of  said  wit- 
nesses, resi)ectively,  the  sum  also  set  opposite  to  their  respective  names 
for  their  fees  in  going  to  and  returning  from  the  ])lace  where  they  are 
by  said  subpoena  (or  summons)  required  to  attend,  and  also  for  one 
day's  attendance  thereat,  to  wit: 

H.  H.,  January  18  at  in  said  county  81.75 

C.  D.,         "  "  **  "  1.50 

E.  F.,       "  "  "  "  1.50 

Subscribed  and  sworn  before  me, 

this  day  of  C.  H. 

^'o.  13. 

PROOF  OF    SERVICE    OF    A     SUUPCENA    IN    A    CRIMINAL    CASE. 
Ante,  ^181. 
The  same  as  the  last  in  all  respects,  except  as  to  the  payment  of 
fees  to  the  witnesses. 

Wo.  44. 

ATTACHMENT    AGAINST    A     WITNESS. 
Ante,  (>183. 

The  people  of  the  state  of  New  York,  to  the  sheriff  of  the  county  of 
greeting : 
We  command  you  that  you  attach  and  bring  him 

[L.  S.]     forthwith,  personally,  before  our  circuit  court  (county  court) 
60 


466  FORMS  roil  SIIIlllIFFS. 

held  in  and  for  our  county,  of  on  at,  &c.,  to  answer  untc 

us  for  certain  trespasses  and  contempts  against  us  in  not  obeying  our 
writ  of  subpccna^  conunnnding  liini  to  appear  on,  6cc.,  at,  A:c.,  before 
sai«l  court,  to  testify  in  a  suit  there  to  be  tried  between  plaintiff 

and  defendant,  on  the  part  of  the  plaintilV  (or  defendant) ;  and 

you  are  further  commanded  to  detain  him  in  yoiu-  custody,  until  he 
shall  be  discharged  by  our  said  court;  and  have  youthen  there  this 
writ. 

Witness,  justice  of  the  supreme  court,  (or  county  judge  of 

said  county)  at  the  court  house  in  the  town  of  in  said  county, 

the  '   day  of  18  li.  H-  Clerk. 

A.  n..  Attorney. 

(I'ndorsed  on  the  writ.) 

Allowed  this  day  of  18 

W.  J.  B.,  Justice  Supreme  Court ; 

or,  P.  S.  R.,  County  Judge. 

3fo.  15. 

TFIK    fAME    IN    A    CRIMINAL    CASE. 

The  people  of  the  state  of  New  York,  to  the  sheriff  of  the  county  of 

greeting : 
n     SI        We  command  you  that  you  attach  and  bring  him 

'        forthwith   personally  before  our  court  of  oyer  and  terminer 
(or  court  of  sessions)  held  in  and  for  our  county  of  at,  Ace,  to 

answer  unto  us  for  certain  trespasses  and  contempts  against  us  in  not 
obevin'T  our  writ  of  subjxx'na,  commanding  him  to  ai)pear  on,  &c„  at 
&.C.,  before  said  court,  (or  not  appearing  in  pursuance  of  his  recog- 
nizance) to  testify  on  an  indictment  there  to  be  tried  against 
on  the  part  of  the  jieople,  (or  defendant)  and  you  are  further  com- 
manded, &c.,  (as  the  last,  and  to  be  indorsed  in  the  same  way.) 

No.  10. 

RETURN     TO    Hrcil     ATTACHMENTS. 

I  have  arrested  the  within  defendant,  as  I  am  within  commanded, 
and  have  him  now  here  before  the  court.     Dated  18 

H.  C,  Sheritr. 


:>o.  17. 

RRTIRN    WHEN    THE    HEFENDANT    18    HICK. 
Anio,  ^IHI. 

At  the  delivery  of  the  wiihin  attu«hiiicnl  to  mc  fur  cxeculion,  the 


FORMS  FOR  SHERIFFS.  107 

within  named  defendant  then  was  and  still  continues  so  sick  and 
unwell,  that  it  would  1)6  dangerous  to  bring  him  before  tlie  court  here, 
as  I  am  within  conunanded  ;  wherefore  1  have  not  the  hrxiy  of  the  said 
defendant  before  the  court  now  here,  according  to  the  command  of 
the  witiiin  attachment.     Dated  18 

II.  C, 

SherifTof  county. 

No.  4H. 

PROOl'    OF     SEUVK'K     OF    A     srill'tKNA      WIlKIli:     TIIK     SKKVUK     lA    MADE    BY 
REAlMNt;    'JI1I-:    Sl'ni'fEVA. 

County  of  ss.     A.  B.,  being  duly  sworn,  deposeth  and  saiih, 

that  on  the  day  of  18      he  served   the  within  sul> 

pcena  upon   the   within   named  and  by  reading  the 

same  to  them  respectively,  (or  stating  the  contents  thereof.)  (If  the 
sul)pocna  is  issued  in  a  civil  cause,  before  a  justice  of  the  peace,  add) 
and  by  paying  (or  tendering  to  each  of  them  respectively)  the  sum  of 
12^  cents  for  one  day's  attendance  at  the  place  mentioned  in  said 
subpoena. 

Subscribed  and  sworn  before  me 

this  day  of  ,18  A.  B- 

No.  49. 

HABEAS    CORPUS    AD    TESTIFICANDUM, 
Ante,  ^201. 

The  people  of  the  state  of  New  York,  to  the  sheriir  of  the  county  of 

greeting : 
fL   S  1         ^^®  command  you  that  you  have  the  body  of  de- 

fendant in  your  prison  under  your  custody,  under  safe  and 
secure  conduct,  before*  our  circuit  court,  to  be  held  at  the  court  house 
in  the  town  of  on  the  to  testify  and  give  evidence  in 

a  certain  action  now  pending  in  the  said  sujireme  court,  then  and  there 
to  be  tried  between  plaintiff  and  defendant,  on  the  jtart 

of  the  plaintiff  (or  defendant,)  and   that  immediately  after  the  said 
shall  have  given  his  testimony  in  said  action,  that  you  return 
him  to  your  prison  under  safe  and  secure  conduct ;  and  have  you  then 
there  this  writ. 

Witness,  W.  J.  B.,  justice  of  the  supreme  court,  at  the  court  house 
in,  &c.,  the  day  of  18  R.  H.,  Clerk. 

A.  B.,  Attorney. 

(Endorsed.)         Allowed  this  day  of  IS 

W.  J.  B.,  Justice  of  the  Supreme  Court. 


468  FORMS  FOR    SIIKRIFFS. 


THE    SAME    TO    nUINi;    A    WITNKHS   IlKKORE    A    REFEREE    OR    JUSTICE. 

Auto,  (;201. 

The  same  as  llie  last  to  ihe  Dsterisk,  and  add  :  "  A.  B.,  referee  in  a 
cause  i>cnding  Inifore  him  as  sufh  referee,  (or  before  C.  D.,  a  justice 
of  the  peace,  in  a  cause  pendini^  before  him.)  wherein  is 

plaintilV  and  is  defendant,  on  the  part  of  the  plaintiH'  (or 

defendant.)"  and  then  the  same  as  the  last. 

i\o.  51. 

BOND    TO    HE    CIVEN    ON    ISSIING    HABEAS    CORPUS. 

Ante,  ^^203,  006. 

(The  penal   part  as  No.  12;  and  the  i)enalty  to  be   in  double  the 

amount  of  tiie  sum  for  which  the  prisoner  may  be  detained,  if  he  be 

detained  for  any  specific  sum  of  money,  and  if  not,  then  in  the  penalty 

of  81000.)     The  condition  of  the  bond  is  as  follows: 

Whereas  a  writ  of  habeas  corpus  (ad  testificandum)  has  been  issued 
bv  the  Hon.  W.  J.  B.,  a  justice  of  the  supreme  court ;  (or,  by  the 
supreme  court,  or  county  court  of  jh»w  in  session  at,  «fec.,)  by 

which  the  said  sherilT  is  commanded  that  he  bring  now  in  the 

custody  of  him  the  said  sheriil'  under  and  by  virtue  of  before 

the  said  justice  of  the  supreme  court ;  (or  before  the  said  court,  or 
before  A.  B.,  a  referee,  or  C.  D.,  a  justice  of  the  j^eace)  on  the  appli- 
cation  of  the  said 

Now  therefore,  the  condition  of  the  above  obligation  is  such,  that  if 
the  said  shall  i>ay  to  said  slierifi'all  chargos  for  carrying  back 

such  prisoner,  if  he  shall  be  remanded,  (or  after  he  has  testified)  ;  and 
that  such  prisoner  shall  not  escape  by  the  way,  either  in  going  to  or 
returning  from  the  place  to  which  he  is  to  be  taken,  then  this  obliga- 
tion shall  be  void,  otherwise  to  ren)ain  in  full  force  and  virtue. 

Signed,  sealed  and  delivered  A.  B.  (L.  S.) 

in  the  presence  of  C.  D.  (L.  S.) 

I¥o.  59. 

JUSTIFICATION    OF     SURETY    TO    BOND. 

County  of  ('.  I),,  the  surety  in  the  foregoing  bond,  being 

by  me  duly  sworn,  depo.seth  and  naith  that  he  is  a  resident  of  said 
county  and  a  householder  (<»r  freeholder)  therein,  and  that  he  is  worth, 
over  and   above  all   dcbt.s  and   liabilities,  in    addition   to  the  property 


FORMS   FOR  SIIKRIFFS.  409 

exempt  from  levy  and  sale  on  execution,  the  sum  of  dollars ; 

and  I'ui'tlier  saith  not. 

Subscribed  and  sworn  before  me  C.  I). 

this  day  of  18  (To  he  acknowledged  as  Nn.  i:{.) 

E.  F.,  Justice  of  the  Peace. 

Wo.  r>:i. 

PROOF  OK    SERVICE  OF  SUUl'fEVA,   WHERE  THE   WITNESS  CONCEAES   llfMSELF. 

Ante,  %'18'J,  350,  361. 
(The  same  as  proof  of  service  of  a  summons  under  the  same  cir- 
cumstances.    See  forms  Nos.  12:2,  123.) 

IVo.  51. 

CALENDAR    OF    PRISONERS    IN    JAIL,    FOR    THE    COURT. 
Ante,fyy237,  202. 
To  the  Court  of  of  county,  now  here  : 

I,  the  undersigned,  Sheriff  of  the  said  county,  do  certify  that  the 
following  calendar  is  a  correct  list  of  the  j»risoners  now  detained  in  the  jail 
of  said  county,  the  times  when  committed,  by  what  process,  and  the 
cause  of  commitment.     Dated  18  H.  C,  Sheriff. 

prisoners'  names.        when  committed.       the  process.       nature  op  the  offence. 
A.  B.  March  4,  18      Justice's  Commitment.         Petit  Larceny. 

No.  55. 

PROCLAMATION    AS    CRIER,    ON    OPENING    THE    COURT. 
Ante,  (/)151,  11 03. 
Hear  ye,  hear  ye,  hear  yc.      Ail  manner  of  persons  that  have  any 
business  to  do  at  this  court,  let  them  draw  near  and  give  their  attend- 
ance and  they  shall  be  heard. 

No.  66. 

FOR    THE    SHERIFF    TO    RETURN    PBOCESS. 

Hear  ye,  hear  ye,  hear  ye.      Sheriff  of  the  county  of 
Return   the  writs   and    precepts  to  you  directed  and  delivered  and 
returnable  here  this  day,  that  the  court  may  proceed  thereon. 

No.  5T. 

BEFORE  CALLING  THE  GRAND  JIRV. 

Hear  ye,  hear  ye,  hear  ye.     You  who  are  here  returned  to  inquire 

or  the  people  of  the  state  of  New  York  for  the   body  of  the  county 

of  answer  to  your  names  at  the  first  call  and  save  your  fines. 


47U  FORMS  roil  sni:uii>i-s. 


rOR  Mii.r.Nri:  <»n   ciiAiMJivr.    tiik  uu.wd  jikv. 

//'(//•  r/r,  lititr  yr,  hntr  i/r.  All  persons  arc  strictly  oiiargcd  and 
t'oininaiidod  to  keep  siienre  while  tin-  c-«»url  is  giving  tlie  charge  lo 
the  grand  jury,  (»n  pnin  of  iniprisonnient. 

i^o.  50. 

BEFOKi:    CM. I. INC    Tlir,    rKIlT    JI  KV. 

Ilrnr  yc,  hear  ye,  fudr  yr.  Vou  who  are  here  returned,  to  try  the 
several  issues  to  he  tried  at  this  court,  answer  to  your  names  at  the 
first  call  and  save  your  lines. 

No.  60. 

ox     IMroSING     FINES. 

ILar  ye,  hear  ye^  hear  ye.      The  court  has  imposed  a  fine  of 
dollars  upon  each  of  the  following  persons,  for  non-attendance  at  this 
court,  to  wit:  on  A.  B.,  for  non-attendance  as  a  grand  juror  ;  on  C. 
I).,  lor  non-attendance  as  a  petit  juror  ;  and  on  E.  F.,  for  non-attend- 
ance as  a  constable. 

Ifo.Ol. 

TO    RETURN    RECOGNIZANCES,  ETC. 

Hear  y,  hear  ye.  hiar  ye.  All  justices  of  the  peace,  coroners, 
sherilVs  and  other  olHcers,  who  have  taken  any  recognizance,  examiiy- 
ation  or  other  matter  ;  return  the  same  to  the  court  here,  that  the  court 
may  proceed  thereon. 

No.  62. 

FOR    I'ERsiONS    To    ATPEAR    ON     U  i:Co<;  N IZANCB. 

Hear  ye,  hear  ye,  hear  ye.  All  manner  of  persons  who  are  bound 
bv  recognizance  to  prosecute  or  j)refer  any  bill  of  indictment  against 
anv  [)risoi)er  or  other  j)erson,  let  them  come  forth  and  prosecute,  or 
they  will  forfeit  their  recognizance. 

]\o.  03. 

P0»    TF.RSONS     IIOCNI)    TO    AN.SWi:n. 

Jf-'ir  yr,  hi-ar  y,  hear  y  \-  I'.,  come  forth  and  answer  to  your 
name  and  save  yourself  and  hail,  or  you  will  forfeit  your  recognizance. 


FORMS   FOR  SIIlilUFFS.  471 

IVo.  61. 

roil   iiAir,  'i-i*    rHoiMtr:  tiii'.iu   p  it  inch*  .m-. 

Hear  yc,  hear  i/r,  hrar  rjr.  C.  D.  and  I'i.  V.  \W\\v^  fr>rtli  A.  IJ., 
your  [)riiicipal,  whom  you  have  underlaken  to  have  here  to-day,  or 
you  will  Ibrleit  your  recognizance. 


No.  65. 

Tow  'vwv.   niscii  \ii<;i:  op  a   I'ui.SDxr.ii  against  whom  no   hill  is  found. 

Hear  ye,  hear  ye,  hear  yc  If  any  man  can  show  cause  why  A.  B. 
should  stand  longer  bound,  (nr  imprisoned,)  let  him  come  forth  and  he 
shall  be  heard,  for  he  stands  upon  his  discharge. 


IVo.  66. 

DLSniARnK. 

Hear  ye,  hear  ye,  hear  ye.      No   cause  being   shown   why    A.    B. 
should  longer  remain  in  custody  of  the  sherill'  of  the  county  of 
he  is  dischari2:eil. 


No.  6T. 

FOR    AN    ADJOURNMENT. 

Hear  ye,  hear  ye,  hear  yc.  All  manner  of  persons  who  have  any 
further  business  to  do  at  this  court,  may  depart  hence  and  apiiear  here 
af^ain  to-morrow  mornincr  at  o'clock,  to  which  time  this  court 

is  adjourned. 

If  o.  6§. 

FOR  OPENING  COURT  AFTER  AN  ADJOURNMENT. 

Hear  ye,  hear  ye.  hear  ye.  All  manner  of  persons  who  have  been 
adjourned  over  to  this  hour,  and  have  any  further  business  to  do  at 
this  court,  may  draw  near  and  give  their  attendance  and  they  srhall  be 
heard. 

No.  60. 

FOR    FINAL     ADJOURNMENT. 

Hear  yc,  hear  ye,  hear  ye.     This  court  is  adjourned  without  day. 


472 


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FORMS  FOR  SHERIFFS.  473 

Wo.  71. 

ri'UMIT    or    JAII-    I'lIV.-ilCIAN    TO    FL'RNIHH    LIQL'Ott. 
Ante,  ^211. 
County  of  ss.     I  hereby  permit  to  be  furnished  for  A.  B.,  a 

l)risoner  now  confined  in  the  jail  of  said  county,  at,  &c.,  one  pint  of 
French  brandy,  to  be  given  to  said  A.  B.  daily,  three  times  a  day  at, 
&.C.  in  (juantitics  not  exceeding  two  table  spoonsful!  at  each 

time.     Dated  18 

C  D.,  Physician  of  said  Jail. 

I¥o.72. 

ACCOUNT     OF     GOODS    PURCHASED    FOR     E.MPLOYMENT     OF    PRISONERS. 

Ante,  ^238. 
The  County  of 

To  sheriff  of  said  county,  Dr. 

To  purchased  for  employment  of  disorderly  persons 

in  the  jail  of  said  county,  '  8500  00 

Dated  18 

County  of  ss.  sheriff  of  said  county,  being  sworn, 

says,  that  the  above  account  is  a  correct  statement  of  the  articles 
purchased  by  this  deponent,  under  and  pursuant  to  the  order  of  the 
court  of  sessions  of  said  county,  a  copy  of  which  is  hereto  annexed  ;. 
and  further  saith  not. 

Subscribed  and  sworn  before  me 

this  day  of  18  H.  C. 

Wo.  T3. 

REPORT    TO    THE    COURT    OF    SESSIONS    OF    DISPOSITION    THEREOF. 

To  the  court  of  sessions  of  the  county  of 

The  following  is  a  true  account  and  statement  of  the  materials  pur- 
chased by  me,  under  and  pursuant  to  the  order  of  this  court,  made  on 
the  day  of  18 

H.  C,  sheriff  of  the  county  of 

In  account  with  said  county  : 

To  cash  received  of  the  county  treasurer,  under  the  order  of  the 
court,  for  the  purchase  of  materials  for  the  employment  of 
disorderly  persons  confined  in  the  jail  of  said  county,  8500 

To  sales  of  articles,  over  cost  of  materials,  100 

SGOO 

61 


474 


FORMS  FOR   SIIFRIFFS. 


By  cash  paid  to  county  treasurer,  arn<»uiil  of  purclmse,         fSOO 
"  '*  "         one  half  of  surplus,  50 


**  **     (\  D.,  one  of  said  convicts, 

his  share  of  said  earnings, 
**  **     F  T  *'  " 


550 

10 
20 
20 


•600 

County  of  ss.  sheriff  of  said  county,   being   duly 

sworn,  says,  that  the  ahove  statement  is  true  and  just  in  all  respects. 


Subscribed  and  sworn  before  nie 
this  day  of  18 


H.  C. 


IVo.  71. 

sheriff's      account    for    TR.WsroRTING     PRISONERS    TO     STATE      PRISON. 

Ante,  $^266,  2C8. 


State  of  New  York, 

To  H.  C.  sheriff  of 
For  transporting  convicts   from 

prison,  as  follows  : 
Transportation  miles 

Maintenance  of  convicts  davs 


county,  Dr. 

in  said  county,  to 


at 


State  of  Nkw  York, 

county,  ss.        ^  being   sworn,  says,  that  lie  is  the 

sheriff  of  said  county  of  and  that  he  transported  the  convicts 

named  in  the  foregoing  account,  from  in  said  county,  to  the 

state  prison  at  on  the  day  of  ;  that  the  whole 

distance  traveled  by  deponent  and  said  convicts,  from  the  place  of 
conviction  to  said   prison,  is  miles,  and   that  they  were  thus 

conveyed   by  the  most  direct  and  expeditious  route  ;    that  he   was 
necessarily  employed  days  in  carrying  said  convicts  to  said  prison, 

from  said  place  of  conviction  ;   and  tliat  the  said  account,  amounting 
in  the  whole  to  is  in  all  respects  correct  and  true,  according 

to  the  best  of  his  knowledge  and  belief.     And  further  tnis  deponent 
says  not. 

Subscribed  and  sworn  before  me 
this  day  of  18 

tl.  C,  Clerk  of  Prison. 

7ku.  7r». 

SHEKirr's    account    for  TRASSroRTINt;    rUISONERS    TO  HOUSE  OF  REFUGE. 

Aiil4-,  (pCG,  208. 

Tlie  same  as  last  in  all  resj)ects,  substituting  the  name  of  the  proper 


FORMS  FOR  SFIF':RIFI-S.  475 

county,  in  place  of  the  stale  of  New  York,  and  the  house  of  refuge, 
instead  of  the  stale  prison. 

Wo.  76. 

ACCOUNT     AGAINST     TIIK      UNITED     8TATK3     FOR     SUPPORTING     PRIHONEBB. 

Ante,  ^235. 

The  United  Stales  of  America,  Dr. 

To  H.  C,  Sheriff  of  county,  New  York, 

For  supporting  A.   B.,  a  jirisoner  of  the  United  States,  charged  with 
iu  the  jail  of  saiil  county  from  day  of  to 

the         day  of        both  inclusive         days,  at  S2  per  week,  8 
Turnkeys  fees,  receiving  and  discharging,  ITt 

Received  this  day  of  18         of  the  United  States, 

from  J.  M.,  marshal  for  the  district  of  New  York, 

dollars,  in  full  of  the  above  account,  for  which  I  have  signed  duplicate 
receipts.  H.  C,  Sheriff  of  county. 


Wo.  7T. 

CONCURRENCE  OF  JUSTICE  OF  THE  SUPREME  COURT,  IN  CALLING  A 
JURY  TO  IXaUIRE  OF  THE  SANITY  OF  A  PRISONER  SENTENCED 
TO    BE    EXECUTED. 

Ante,  271. 

State  of  New  York. 
County  of  ss. 

It  appearing  to  me  that  there  is  reason  to  believe  that  A.  B.,  lately 
convicted  of  murder  before  the  undersigned,  a  justice  of  the  supreme 
court  of  this  state,  at  a  court  of  oyer  and  terminer  held  at  on, 

&c.,  and  who  is  now  under  sentence  of  death  in  the  jail  of  said  county, 
has  become  insane  since  the  said  conviction  ;  I  do  therefore,  in  pursu- 
ance of  the  statute  in  such  case  made  and  provided,  concur  with  H. 
C,  the  sheriff  of  the  said  county,  in  calling  a  jury  to  make  inquest 
whether  the  said  A.  B.  be  of  sane  mind  or  no.     Dated  18 

W.  J.  B.,  Justice  of  the  Supreme  Court. 

wo..r§. 

notice    to    the    DISTRICT    ATTORNEY    OF    THE    HOLDING    THE    INQUEST. 

Ante,  <)271. 
To  A.  B.   Esq.,  District  Attorney  of  county  : 

Sir:  Take  notice  that,  with  the  concurrence  of  the  Hon.  W.  J.  B-, 


476  FORMS  FOR   SIII'.RIFFS. 

llie  justice  of  the  suj>roiiu'  court  Iti'fore  wlioui  A.  ]].,  now  in  the  jail  of 
said  rounly  under  the  sentence  <»f  death,  was  convicted,  I  shall  jiroceed 
to  execute  an  inquest  at  the  jail  of  the  said  county  in  on  the 

dav  of  IM  at  o'clock  in  the  noon, 

to  determine  whether  the  said  A.  B.  be  of  sane  mind  or  no. 
Dated  18 

H.  C,  Sheriff  of  county. 

]\o.  79. 

THE    LIKE    IN    THE    CASE    OK    A    PREGVAXT    FEMALE. 
Anto,  (/273. 
Sir  :  Take  notice  that  on   the,  Szc,  I   shall  proceed   to  execute  an 
inquest  to  determine  whether  A.  B.,  a  prisoner  now  confined    in  said 
jail  under  sentence  of  death,  be  pregnant  and  quick  with  child  or  no. 
Dated  18 

II.  C,  SherilTof  countv. 

IVo.  SO. 

SUBPOENA    OF     DISTRICT    ATTORNEY. 
Ante,  <>271. 

The  People  of  the  State  of  New  York  to 
Greeting  : 

We   command   you  that,  laying  asitie  all   business,  you   be  and 
appear  at  the  jail  of  the  county  of  in  on  the 

day  of  18  to  testify  and  give  evidence  upon  an  inquest 

then  and  there  to  be  taken  before  II.  C,  sherifl'  of  said  county,  to 
determine  whether  A.  B.,  a  prisoner  therein  confined,  and  now  under 
sentence  of  death,  be  insane  or  no ;  (or,  be  pregnant  and  quick  with 
child  or  no  ;)  and   hereof  fail  not  at  your  peril. 

Witness  our  said  district  attorney  of  said  county,  at  the  of 

•   in  said  county  this  day  of  18 

H.  U.,  District  Attorney. 


lVo.§l. 

OATII    TO    JfRORS. 

You  do  each  for  yourself  swear  that  vou  will  well  and  tridy  intjuire 
whether  A.  B.,  the  prisoner  now  licre,  be  of  sane  miiul  or  no,  (or  be 
pregnant  and  (juick  with  child  or  no,)  and  that  you  will  true  incjucst 
make  thereof,  according  to  the  evidence,  so  help  you  CI<ul. 


FORMS  FOR  SHERIFFS.  4T7 

No.  H2. 

wiir.Ki:   jruou   is    oiur.t  ri;it  to. 
You  shall  true  answers  make  to  sucli  questions  as  shall  be  put  to 
you  tourhiiig  the    ohjection   or   rlialleiige   to  you  as  a  juror.     vSo  help 
you  God. 

If  o.  83. 

TO    A    WITNESS    IN    yL'CII    CASE. 

Yott  shall  true  answers  make  to  such  questions  as  shall  be  put  to 
you,  touching  the  challenge  of  a  juror.     So  help  you  Uod. 

No.  ^1. 

OATH    OF    WITNESS    ON    INUCEST. 

The  evidence  you  shall  give  touching  the  sanity  of  A.  H.,  the 
prisoner  now  here,  shall  be  the  truth,  the  whole  truth  and  nothing  but 
the  truth.     So  help  you  God. 

No.  85. 

IN    CASE    OF    PUEGNANT    FEMALE. 

The  evidence  you  shall  give  upon  this  inquest  whether  A.  I>.,  the 
prisoner  now  here,  be  {)regnant  and  quick  with  child  or  not,  shall  be 
the  truth,  the  whole  truth  and  nothing  but  the  truth.  So  help  you 
God. 

No.  86. 

INQUISITION    AS    TO    THE    SANITY    OF    PRISONER. 
Autc,  ^272. 
State  of  New  York,  ) 

County  of  ss.    )      Inquisition  taken  before  the  undersigned, 

sheriff  of  the  county  of  with  the  concurrence  of  W.  J.  B., 

the  justice  of  the  supreme  court,  before  whom  A.  B.,  now  confined  in 
the  jail  of  the  said  county  under  sentence  of  death,  was  convicted,  at 
the  said  jail,  on,  &c.,  upon  the  oaths  and  afTirmations  of  C.  D.,  &.c., 
twelve  electors  of  the  said  county,  summoned  by  me  to  inquire  as  to 
the  sanity  of  the  said  A.  B.  The  said  jurors  being  each  duly  sworn 
and  charged  to  inquire  touching  the  sanity  of  the  said  prisoner,  do 
upon  their  oaths  and  afllrmations  say  that  the  said  A.  B.  is  not  in  a 
sound  state  of  mind,  but  is  of  insane  mind,  (or  is  of  sane  mind). 

In  witness  whereof,  we,  the  said  sheriff,  as  well  as  the  said  jurors, 
have  to  this  inquisition  set  our  hands  and  seals  at  the  time  and 
place  aforesaid. 

Itiroi'S.  Jurors. 

A.  B.,  C.  D., 

E.  P.,  &c. 

H.  C,  Sheriff. 


478  rORMS    F(^!l    SIIKRIFI-S. 

I\m*ISITIO\     IN    CAHK    «»K     rRKCJNAVT    JTMAI.E. 
Ant««,  ^'7:J. 

State  of  New  York,  ) 

County  of  ss.     |       Imiuisitioii   taken   before*  tlie  undersigned, 

sherilT  of  county,  at  the  jail  in  in  said  county,  on  the 

day  of  uj)on  the  oaths  and  alfirniations  of  ('.  1),,  tfcc, 

six  i>hysicians  of  said  county  suinnioned  hy  me  to  incjuire  whether  A. 
B.,  a  prisoner  now  confined  in  said  jail  under  sentence  of  death,  be 
pregnant  and  quick  with  child  or  no.  And  the  said  jurors  each  being 
sworn  and  charged  to  iiKjuire  whether  the  said  A.  B.  be  j)regnant  and 
quick  with  child,  and  upon  their  oaths  and  afiirmalions  say  that  the 
said  A.  B.  is  now  pregnant  and  quick  with  child,  (or  is  not  pregnant 
and  quick  with  child.) 

In  witness  whereof,  &c.,  as  in  the  last. 

No.  §§. 

INVITATION    TO     ATTKNU    TllK      EXECUTION    OF    A    CRIMINAL. 
Ante,  ^270. 

Sir:  Pursuant  to  the  statute   in   such   case,  you  are  hereby  invited 
to  be  present  at  the  execution  of  at  the  jail  of  said  county  in 

on  the         day  of  Dated         18  H.  C,  Sheritl'. 

To  lion.  W.  J.  B.,  Justice  of  the  Supreme  Court. 

If  o.  SO. 

CERTIFICATE    OF     THE    EXECUTION    OF    A    CRIMINAL. 

Ante,  ^278. 
State  of  New  York,  ) 

County  of  ss.     )      We,  the  sherilT  of  the  county  of 

and  the  other  public  officers  and  persons  whose  names  are  hereto 
subscribed,  do  certify  that  who  was  sentenced  by  the  court  of 

oyer  and  terminer  held  in  and  for  the  county  of  on  the 

day,  iSlc,  to  be  executed  on  this  day.  between  the  hours  of 

ten  o'clo<-k  in  the  morning  and  twelve  at  noon,  was  at  the  time  men- 
tioned, in  jtursuaiice  of  the  said  sentence,  executed  by  haiiLring  by  the 
neck  until  he  was  dead,  in  the  jail  yard  of  the  jail  in  the  said  county  ; 
and  we,  the  undersigned,  do  certify  that  we  witnes.sed  the  said  execu- 
tion, and  that  the  same  was  conducted  and  performed  in  conformity  to 
the  provisions  of  law  of  this  state  concerning  capital  punishment,  and 
of  llie  said  senteii<-e. 

In  witness  whereof,  we  have  at    the   said  jail  subscribed  our  names 
hereto,  this  day  of  in  the  year  one  thousand  eight 

hundred  and 

(Signed)  II.  C,  SherilT. 

W.  J.  B.,  Justice  of  Supreme  Court. 

H.  U.,  District  Attorncv. 

C.  D.,  etc. 


FORMS  FOR  SHERIFFS. 


479 


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-1^0  KORMS    FOR  SI  1 1:  RIFFS. 


.\o.  O'J. 


RKPORT    IN    niFFERKNT    KoRM,    \Vin:\    TIIKKK     IS     HUT    ONE^    CONVICT. 

Ante,  ^168. 

John  Thomas,  soniotinips  poos  by  the  name  of  Smith  ;  was  con- 
victed of  passing  counterfeit  money.  He  had  been  brought  up  as  a 
clerk  in  a  merchant's  store,  but  of  late  years  had  no  regular  occupa- 
tion. He  is  a  man  about  35  years  of  age.  He  was  married,  but  lost 
his  wife,  and  has  two  children  ;  he  was  born  in  the  United  States.  He 
appears  to  have  had  a  good  education  for  a  merchant ;  reads  and 
writes  well,  has  good  knowledge  of  arithmetic,  some  of  geoirraphy  and 
very  little  of  history  ;  he  speaks  French  and  apparently  with  correct 
pronunciation.  In  early  life  he  aj)pears  to  have  had  no  opportunity 
for  religious  instruction.  He  is  a  good  musician.  He  lost  his  mother 
when  about  six  years  of  age.  He  was  convicted  some  five  or  six 
years  since  of  larceny  in  IMiiladelphia,  and  was  discharged  at  the 
expiration  of  his  sentence,  after  beinir  imprisoned  six  months.  He  is 
somewhat  addicted  to  the  use  of  ardent  sjiirits,  and  has  been  for  ten 
or  twelve  years.  He  is  of  a  cheerful  disposition,  and  has  behaved 
well  during  his  imprisonment. 

Dated,  *tc. 

0 

No.  93. 

RKTURN  TO  PROCESS  THAT  THE  DEFENDANTS  CANNOT  DE  FOUND. 

The  within  defendant  cannot  be  found  in  my  countv. 

A.  B.,  Sherifl: 

This  return  will  be  a  proper  return  to  all  process  where  the  defend- 
ant cannot  be  found,  whether  it  be  to  a  summons,  judge's  order,  attach- 
ment, ca.  sa.,  or  ne  exeat. 

IVo.OI. 

UNDERTAKING    ON    ARREST    UNDER    CUDE. 
Ante,  ^332. 
(Title  of  Action.) 

The  above  defendant  having  been  arrested  by  the 
sheriff  of  the  rounty  of  and   being  now  in  his  custody,  under 

and  pursuant  to  an  order  made  by  the  Hon.  a  justice  of  the 

supreme  court  of  this  State,  (or  county  judge  of  the  county  of  ) 

requiring  the  defendant  tf>  be  held  to  bail  in  the  sum  of  dollars: 

Now,  therefore,  we,  1'.  I\.  hide  nnd  leather  dealer,  residing  in 
in  saifl  county,  an<l  (J.   H.,  L'<iilleman,  residing  in  the  same  place,  do 
undertake  in  the  said  sum  of  that  the  defendant  shall  at  all 


FORMS  FOR  SHERIFFS.  481 

times  render  himself  amonuble  to  the  process  of  the  r.ourt  during;  the 
pendency  of  this  action,  and  to  3uch  as  may  be  issued  to  enforce  the 
judgment  therein.     Dated  186 


E.  F. 
G.  H. 


No.  95. 


AFFIDAVIT    OK    JUSTIFICATION. 

Ante,  ()333. 

(Title  of  action.) 

County  of  ss.     E.  F.  and  G.  H.,  the  surety  in  the  above 

undertaking  being  severally  duly  sworn,  each  for  himself,  deposes 
and  says  that  he  is  a  resident  and  householder  (or  freeholder)  within 
the  state,  and  that  he  is  worth  the  sum  of  (the  sum  mentioned  in  the 
order  of  arrest)  over  and  above  all  debts  and  liabilities,  and  exclusive 
of  property  exempt  from  execution. 

Subscribed  and  sworn  before  £.  F. 

me,  this  day  of  G.  H. 

No.  96. 

CERTIFICATE    OF    ACKNOWLEDGMENT. 
Ante,  ^332. 
(Title  of  action.) 

County  of  ss.     Personally  appeared  before  me  this 

day  of  185     E.  F.  and  G.  H.,  to  me  known  to  be  the  surety 

described  in,  and  who  executed  the  within  undertaking,  and  who  seve- 
rally acknowledged  that  they  executed  the  same  for  the  uses  and  pur- 
poses therein  mentioned. 

County  Judge  of        countv. 

If  o.  97. 

CERTIFICATE    TO    COPY    DELIVERED    TO    ATTORNEY. 
Ante,  <J337. 
I  certify  that  the  within  is  a  true  copy  of  the  undertaking,  taken  on 
the  arrest  of  the   defendant   in   the  within   entitled   action.     Dated 
185 

H.  C,  Sheriff  of       county. 

No.  9§. 

NOTICE     OF    JUSTIFICATION    OF    BAIL. 

Ante,  ^338. 

(Title  of  action.) 

Sir  :  Take  notice  that  the  bail  in  the  undertaking 
62  ^' 


482  FORMS  FOR  SHI:R1I'I'S. 

taken  on  the  arrest  of  the  delciulnnl  in  this  arlion,  will  juslify  before 

the   Hon.                 county   judi^e  of  county,   at    his  ollire    in 

on  the                 day  of  at       o'clock  in  the  forenoon. 

Hated                                 '  H.  C,  Sheriff. 

To  .\.  U.,  .Vtlorney  for  I'lainlil]' 

No.  00. 

RKTIRN     OF    ARRKST    I'XDER    OUUKR,    AND    OF    HOLDING    TO    BAH,. 

AlltO,    <yVM. 

I  have  arrested  the  within  defendant,  pursuant  to  the  within  order, 
and  at  the  same  time  delivered  to  him  a  ropy  thereof,  and  of  the 
affidavit  on  which  the  order  was  granted  ;  and  have  taken  from  said 
defendant,  the  undertaking  of  E.  F.,  hide  and  leather  dealer,  residing 
in  and  G.  H.,  gentleman,  residing  in  the  same  place,  a  copy 

of  which,  duly  certified  by  me,  is  returned  herewith. 

Dated  185  H.  C,  Sheriff  of        county. 

IVo.  lOO. 

RETURN    WHERE     THE    DEFENDANT     MAKES    A    DEPOSIT    INSTEAD    OF    RAIL. 

Ante,  ^886. 
I  have  arrested  the  within  defendant,  pursuant  to  the  within  order, 
and  at  the  same  time  delivered  to  him  a  copy  thereof,  and  of  the  affi- 
davit on  which  the  order  was  granted  ;  and  I  have  received  from  said 
defendant  the  sum  of  dollars  instead  of  bail,  and  have  deposited 

the  same  with  the  county  clerk  of  county. 

H.  C,  Sheriff  of        county. 

No.  101. 

CERTIFICATE    OF     DEPOSIT     OF    AMOUNT    INSTEAD    OF    DAII.. 
Ante,  ^336. 

(Title  of  action.) 

The  above  defendant  having  been  arrested  by  me, 

under  and  pursuant  to  an  order  of  recjuiring  such  defendant 

lo  be  held  to  bail  in  the  sum  of  I  hereby  certify  that  I  have 

received  from  said  defendant  the  said  sum  of  instead  of  bail. 

Dated  185  H.  C,  Sheriff. 

No.  102. 

CERTIFICATE     OF    CI.ERK     OF    DEPOSIT    WITH    HIM. 
Ante,  (^.'iSO. 

(Title  of  action.) 

I  certify   that  H.  C,  sheriff  of  the  county  of 


FORMS  FOR  SHERIFFS.  483 

has  this  day    paid    into  court,   the   sum   of  dollars,  being  the 

amount  mentioned  in  the  order  of  arrest  in  this  action. 

Dated  185 

R.  H.,  Clerk  of        county. 


Ifo.  103. 

IlETURN     WIir.llK      TIIK      DKFKNDANT      IS     COMMITTED     FOR    WANT    OF     IIAII- 

I  have  arrested  the  within  defendant,  pursuant  to  the  within  order, 
and  have  him  in  my  custody  in  the  common  jail  of  the  county  of 
for  want  of  bail. 
Fees  S  H.  C,  Sheriff. 

Wo.  104. 

RETURN  OF  ARREST  AND  RESCUE. 

I  arrested  the  within  defendant  as  I  am  within  commanded,  but  the 
said  defendant,  before  he  could  be  conveyed  to  jail,  forcibly  rescued 
himself,  on,  &c.,  at,  &c.,  and  escaped  out  of  my  custody  ;  and  since 
the  said  defendant  is  not  found  in  my  county. 

Dated  18  H.  C,  Sheriff  of        county. 

Mo.  105. 

RETURN    OF    ARREST    AND    THAT    DEFENDANT    IS    SICK. 

I  have  arrested  the  within  defendant,  who  at  the  time  of  his  arrest, 
and  still,  on  this  day  of  18  ,  the  last  day  of  the 

return  of  this  order  (or  execution,  or  warrant,  or  ne  exeat,)  is  so  sick 
that,  for  fear  of  his  death,  I  cannot  have  him  as  I  am  within  com- 
manded.    Dated  18 

H.  C,  Sheriff  of        county. 

Mo.  106. 

RETURN  OF  ARREST  AND  DEATH  OF  DEFENDANT. 

I  have  arrested  the  within  defendant,  and  held  him  in  my  custody 
until  on  the  day  of  18  when  he  died  by  reason 

of  sickness,  (or  by  suicide,  or  was  murdered,)  therefore  I  cannot  have  the 
body  of  the  said  as  I  am  within  commanded.     Dated 

18  H.  C,  Sheriff  of        county. 


484  FORMS  FOR  siii:riffs. 


.\o.    I07. 

RKTURN    OK    EXEMPTION     FROM    ARREST. 
Ar>U<.  300. 
I  arrested  the  within  deferulant.  as   I   am  within   ronimanded  ;  and 
the  said  ilefendanl  chiiniing  exeni)ttion  iherelVoin,  by  reast»n  of  having 
been  diilv  subjxrnaed  to  attend  as  a  witness  uj)on  the  trial  of  a  certain 
cause  then  pending  in  the  supreme  CDurl  of  this  state,  between 
plainlifl",  and  defendant,  <»n  the  jiart  of  the  defendant,  and  tlien 

to  be  tried  at  a  circuit  court,  to  be  held  at  in  said 

and  having  i)cen  required  thereto  by  me,  did  make  aflidavit  of  such  fact, 
and  that  he  had  not  been  so  subjKtnaed  by  his  own  procurement,  with 
intent  of  avoiding  service  of  process,  I  did  release  the  said 
from  such  arrest ;  and  afterwards  the  said  could  not  be  found 

in  my  county ;  wherefore  I  cannot  have  him  as  I  am  within  com- 
manded.    Dated  18  H.  C,  Sheriff  of        county. 

No.  108. 

AFFIDAVIT    OF    A    WITNESS    TO    OBTAIN     DISCHARGE    FROM    ARREST. 

Ante,  $800. 
(Title  of  cause.) 

County  of  ss.     A.  B.,  being  duly  sworn, 

deposeth  and  saith  that  he  has  been  legally  subpccnaed  as  a  witness  to 
attend  before  the  court  of  oyer  and  terminer  in  and  for  the  county  of 
now  in  session  at  on  the  trial  of  an  indictment  against 

C.  D.,  on  the  part  of  the  people,  and  that  he,  this  deponent,  has  not 
been  so  subpdnaed  by  his  own  jirocuremeiit,  with  intent  of  avoiding 
service  of  process ;  and  further  this  de]>onent  saith  not. 

Sworn  before  me  this  A.  B. 

day  of  18 

II.  C,  Sheriff  of        county. 

]%o.  109. 

RETURN     OF      rUIVM.EGE. 

At  the  coming  to  me  of  the  within  order  of  arrest  (or  cajiias  ad 
satisfaciendum,)  the  congress  of  the  United  States  (or  the  legislature 
of  the  state  of  \ew  York)  was  then  and  still  is  in  session,  and  that 
during  all  that  time  the  uitliin  defendant  was  and  is  a  member  of  the 
senate  of  the  United  States,  (or  of  the  assembly  of  the  state  of  New 
York,)  for  the  th  <(»ngressional  district  of  the  state  of 

(or  for  the  county  of  )  ;  wherefore  I  cannot  have  the  body  of 

the  said  f^as  I  am  within  commanded. 

Dated  18  II.  C,  Sheriff  of        county. 


FORMS  FOR  SHERIFFS.  485 

No.  110. 

THE  SAME. 

The  within  named  at  the  delivery  of  the  within  order  of 

arrest,  (or  capias  ad  satisfaciendum,  or  writ  of  ne  exeat,)  and  until 
the  return  day  of  the  said  writ,  was  minister  plenipotentiary  from  the 
Queen  of  Great  Ikitain  at  the  government  of  the  United  States  ; 
wherefore  I  cannot  have  his  body  at  the  time  and  place  within  named, 
as  I  am  within  commanded. 

H.  C,  SherifT  of        county. 

No.  111. 

RETURN    UPON    AFFIDAVITS     IlEFORE    FILING. 

I  certify  and  return,  that  at  the  time  of  the  arrest  of  the  defendant 
in  the  within  entitled  cause  under  the  order  made  therein  by  Hon.  W. 
J  B.,  to  wit :  on  18  I  delivered  to  the  said 

defendant  copies  of  the  within  affidavits,  personally. 

H.  C,  Sheriff  of        county. 

IVo.  113. 

DEPUTATION    OF    BAIL     TO     ARREST    PRINCIPAL. 

Ante,  ^342. 

Know  all  men  by  these  presents,  that  I,  A.  B.,  (or  we,  A.  B.  and  C. 

D.,)  of,  (fcc,  being  the   same  A.  B.   mentioned   in  the  within  copy  of 

undertaking,  (or  bail  bond,  or  bond  for  the  limits,  or  recognizance,) 

have  deputized,  authorized  and  empowered  in  my  place  and  stead  and 

in  my  behalf,  E.  F.,  of,  &c.,  to  take,  arrest,  secure  and  surrender  to  the 

sheriff  of  the  county  of  in  the  state  of  NewYork,  G.  II.,  in  said 

copy  of   undertaking   named,   in  exoneration  and   discharge   of  my 

(recognizance)  as  bail  of  said  G.  H.,  in  the  cause  therein  mentioned, 

and  to  employ  such  persons  and  assistants  as  may  be  necessary  to  effect 

said  purpose.     In  witness  whereof,  I    have  set  my  hand  hereto  this 

day  of  18 

A.  B        (L.  S.) 

No.  113. 

CERTIFICATE    OF    SURRENDER    OF    DEFENDANT    BY    HIS    BAIL. 
Ante,  ^341. 
(Title  of  cause.) 

I  certify  that  the  surety  in  the  undertaking 


486  rORMS  rOR  Sfll-.RII-I-S. 

given  on  the  arrest  of  the  tloremiaiit,  liiive  this  day  surrendered  the 
said  tlefendftnt  in  exoneration  of  them  as  bail,  by  dehvering  him  into 
my  custody,  together  with  a  certified  copy  of  the  undertaking  given 
by  the  said  surety.     Paled  18 

H.  C,  Sheriir. 


^o.    I  I  I. 

VNDERTAKING    ON    ARRKST    Wlir.UK     I'KKSoNAl,     rUul-LUTY    18    SECRETED. 

Ante,  <>344. 
(Title  of  cause.) 

This  action  has  been  brought  to  recover  possession 
of  the  following  described  personal  pro|)erty,  to  wit :  alleged 

to  be  unjustly  detaii>ed  by  the  defendant,  and  concealed  or  removed  or 
disposed  of,  so  that  it  cannot  be  found  or  taken  by  the  sheritf,  and  with 
the  intent  that  it  should  not  be  so  found  or  taken,  or  with  the  intent  to 
deprive  the  plaintiff  of  the  benefit  thereof ;  and  whereas  the  said 
defendant  has  been  arrested  in  said  action  by  the  sheriff  of  the  county 
of  under  and  pursuant  to  an  order  of  Hon.  a  justice 

of  the  supreme  court  of  this  state,  requiring  the  said  defendant  to  ba 
held  to  bail  in  the  sum  of  dollars  : 

N(-»\v  therefore,  we  merchant,  and  farmer,  both  residing 

at  in  said  county,  do  acknowledge  ourselves  to  be  bound  in 

the  sum  of  dollars,  for    the  delivery  of    said    personal  property 

to  the  plaintiff,  if  such  delivery  be  adjudged,  and  for  the  payment  to 
iiim  of  such  sum  as  may  for  any  cause  be  recovered  against  the 
defendant.     Dated 

A.  B. 
CD.     . 
(Sureties  to  acknowledge  and  justify  as  Nos.  95,  9(5.) 

Ifo.  115. 

CERTIFICATE    OF    ."ERVICK    OF    A    SUMMONS     ON    A    CORPORATION. 

Aiito,  (;350,  sub.  1. 

('ounty  of  ss.     1  certify  that  on  the  day  of 

18  I  served  the  within  summons  (and  annexed  com- 

jthiint)  upon  the  within  named  defendants,  by  delivery  to  A.  13.,  the 
president  (or  managing  agent)  of  said  corporati<»n,  personally,  copies 
thereof,  in  in  said  counlv. 

H.  C,  Sheriff 
Fees  •  By  D.  E.,  Deputy. 


FORMS  FOR  SHERIFFS.  487 


No.  110. 


CERTIFICATE  OF  SERVK'K  OF  A  SUMMONS  ON  A  FOREIGN  CORPORATION, 
WHICH  HAS  DESIGNATED  A  I'KUSoV  RESIDING  IN  THE  COUNTY  ON 
WHOM     I'ROCESa    MAY    UE    8ERVED. 

Ante,  ^1164. 

County  of  ss.     I  certify  that  on  the  day  of 

18  I  served  the  within  summons  (and  annexed  complaint)  upon  the 
within  defendants,  in  in  said  countyrby  deHvering  to  A.  JJ., 

the  person  designated  by  said  corporation  on  whom  process  issued  by 
authority  of,  or  under  any  hiw  of  this  state,  may  be  served,  a  copy  of 
said  summons  (or  copy  of  said  summons  and  complaint)  personally. 

Fees  $  H.  C.,  Sheriff  of        county. 

IVo.  117. 

THE    SAME,    WHERE    NO    PERSON     Id    SO    DESIGNATED. 
Ante,  ^1105. 
County  of  ss.     I  certify  that  on  the  day  of 

18  I  served  the  within  summons  and  annexed  complaint  upon  the 
within  named  defendants  in  in  said  county,  by  delivering  to 

copies  thereof,  personally ;  said  at  the  time  of  such 

service  being,  or  acting  as,  the  agent  of  said  defendants  within  this 
state,  (or  doing  business  for  them  within  this  state,)  the  said  defendants 
not  having  designated  any  person  within  said  county,  under  the  pro- 
visions of  chapter  279  of  the  laws  of  1855,  of  this  state,  on  whom  such 
process  might  be  served. 

Fees  8  H.  C,  Sheriff. 

!Vo.  11§. 

CERTIFICATE  OF  SERVICE  UPON  AN  INFANT  INDKR  FOURTEEN  YEARS 
OF    AGE. 

Ante,  ^350,  sub.  2. 

County  of  ss.     I  certify  that  on  the  day  of 

185  I  served  the  within  summons  (and  annexed  complaint)  upon 
the  within  minor  defendant,  by  delivering  to  him  personally  copies 
thereof,  in  in  said   county,  and  also  by  delivering  at  the  same 

time  and  place  like  copies,  personally,  to  the  father  (mother  or 

guardian)  of  said   infant,   (or  to  the  person  having  the  care 

and  control  of  such  minor  ;  or  to  the  person  in  whose  service 

he  was  then  employed,  such  infant  having  no  father,  mother  or  guar- 
dian within  this  state.) 

Fees  $  H.  C,  Sheriff  of        county. 


488  FORMS    FOFl  SflFJlIFFS. 

TUB    SAME    I'PON     A     I.l  NATIC    ANn    Ilt.S    TOMMITTEK. 

Anto,  ^S60,  Bub.  3. 

County  of  ss.     I  certify  that  on  the  Hay  of 

18       I  served  iho  within  suininons  upon  the  within  named  defendant, 
by  delivering  to  him.  personally,  a  copy  thereof,  in  in  said 

county ;    and  by  delivering   a  like    copy    to   the  committee  of  said 
defendant,  on  the  *   day  of  in  in  said  county, 

personally. 

Fees  8  H.  C,  Sheriff  of        county. 

I¥o.  120. 

THE    SAME    UPON      A    SINGLE    DEPENDANT. 

Ante,  360,  (;4. 

County  of  ss.     I  certify  that  on  the  day  of 

18       I  served  the  within  summons  and  annexed  complaint,  upon  the 

within  named  defendant,  in  in  said  county,  by  delivering  to 

him,  personally,  copies  thereof. 

Fees  8  H.  C,  Sheriff  of        county. 


No.  191. 

WIIKRC    .'JKYERAL     DEFENDANTS      ARE    SERVED    AT    DIFFERENT    TIMES. 

Auto,  ^3&0. 
County  of  ss.     I  certify  that  I  served  the  within  summons 

and  annexed  complaint,  upon  the  several  defendants  therein  named, 
by  delivering  to  each  of  them  personally,  copies  thereof,  at  the  times 
and  at  the  places  in  said  county  set  oj>posite  their  names  respectively, 
to  wit : 

A.  B.,  on  the  day  of  18  at  A. 

C.  I).,      "  "  "  •'    B. 

E.  v.,      *'  "  "  •«    C. 

Fees  8  H.  C,  Sheriff  of        countv. 


No.  laa. 

CKRTIfiCATE    THAT    DKFKNDANT    EVADES    SERVICE,  ETC. 
Ante,  ^360  sub  5. 
Countv   of  t8.     I  certify   that   the   within  defendant  is  a 


FORMS  FOR  SIIFRIFFS.  489 

resident  of  in  suid  county,  and  that  1   have  made  jiroper  and 

diligent  eflbrts  to  serve   the  within  summons  and  annexed   com{)laint 
upon  him,  but  that  such  defen(huit  cannot  be  found  within  niy  county, 
(or,  avoids  or  evades  such  service,)  so  that  the  same   cannot  be  made 
personally  upon  him  by  sucli  proper  diligence  and  ellbrl. 
Fees  «0  12^ 

II.  C,  Sherifl'  of        county. 


No.  123. 

PROOF  OF     SERVICK     IN    SUCH     CASE. 
Ante,  ^360,  sub.  5. 

County  of  ss.  being  sworn,  says  that  on  the 

day  of  he  made  service  of  the  within  summons  and  annexed 

complaint  upon  the  within  defendant  in  in  said  county, 

in  pursuance  of  the  annexed  order,  by* 

and   by  putting  other  copies  thereof,  properly  folded  (or  enveloped) 
and  directed  to  said  defendant  at  his  said  place  of  residence, 

into  the  post-office  in  said  and  paying  the  postage  thereon  : 

and  further  saith  not.  H.  C. 

Subscribed  and  sworn  before  me 
this  day  of  18 

Fees  $  A.  B.,  Justice  of  the  Peace. 

If  the  service  was  by  delivery  of  copies  to  any  person  at  the  de- 
fendant's place  of  residence,  insert  after  the  asterisk,  "  leaving  copies  of 
such  summons  and  complaint  at  the  residence  of  said  defendant,  with 
his  wife."  Or,  if  the  officer  cannot  get  into  the  house,  or  there  is  no 
person  who  will  receive  the  papers,  insert  after  such  asterisk. 
"affixin<T  the  same  to  the  outer  door  of  the  residence  of  said  defendant. 
the  said  house  being  closed,"  (or,  admittance  being  refused  ;  or,  there 
beinf  no  person  of  suitable  age  to  receive  the  same,  or,  there  being 
no  person  of  suitable  age  who  would  receive  the  same.) 


No.  121. 

UNDERTAKING    OF    THE      PLAINTIFF    TO      OBTAIN     DELIVERY     OF    PERSONAL 
PROPERTY. 

Ante,  ^865. 

(Title  of  action.) 

Whereas  the  plaintiff  in  this  cause  has  commenced 
(or  is  about  to  commence)  an  action  against  the  defendant  for  the 

63 


490  FORMS  FOR   SIIKRIFFS. 

recovery  of  certain  ariicles  of  personal  projMjrty  menlioned  in  (he 
afliilavit  of  the  saiil  plaiiititr,  to  wii : 

Now  therefore,  we  A.  li.  and  C.  D.,  both  of  merchants,  do 

acknowledge  ourselves  to  be  bound  in  the  sum  of  for  the 

prosecution  of  the  said  action  for  the  return  of  the  saiti  proi)erty  to 
the  defendant,  if  return  thereof  be  adjudged,  and  for  the  payment  to 
him  of  such  sum  as  may  for  any  cause  be  recovered  against  the 
plaintiff".     Dated  18 

(Signed,  acknowledged,  and  surety  to  justify  as  in  Nos.  05,  00.) 

No.  135. 

APPROVAL    THEREOF     DV    THE    SHERIFF. 
Ante,  ^35C. 
I  approve  of  the  sureties  in  the  within  undertakinfi. 

H.  C,  Sheriti'of        county. 

No.  136. 

NOTICE    OF    CLAIM    RV    A    THIRD    PERSON. 

Ante,  ^301. 

(Title  of  action.) 

Sir  :  Take  notice  thai  A.  B.  claims  the  property 
taken  by  me  under  the  order  in  this  action,  and  has  made  affidavit 
of  his  title  thereto,  and  right  to  the  possession  thereof,  and  of  the 
grounds  of  such  right  and  title,  and  served  the  same  on  me,  and  that  I 
do  therefore  require  to  be  indemnified  by  the  plaintilT  against  such 
claim,  and  in  default  of  such  indemnity,  I  shall  not  deliver  such 
property  to  the  plaintiff,  nor  keep  the  same. 

Dated  18  II.  C,  SherilT  of        county. 

To  C.  D.,  Esq.,  PlainlilFs  Attorney. 

No.  137. 

INDEMNITY     ACJAINST    SUCH  CLAI.M. 
Autc,^3Cl. 
(Title  of  action.) 

Whereas  A.  B.  claims  to  be  the  owner  of,  and  to 
have  the  right  of  [wssession  of  certain  j)ersoiKil  j)roperty  which  has 
been  taken  by  11.  i\,  sheriff  of  the  county  of  upon  tl)«  affidavit 

and  order  of  the  plaintiff  herein,  under  the  provisions  of  the  Code  for 
obtaining  possession  of  personal  property,  to  wit : 

Now  therefore   we,  G,  li.   and   J.  K.,  of  merchants,  do 


FORMS  FOR  SMRRIFFS.  491 

undiertake  and  agree  to  indeinnify  and  save  harmless  the  said  H.  C, 
sherifl'  as  aforesaid,  against  such  (-laiin. 

(Signed,  acknowledged,  and  surety  to  justify,  as  in  Nos.  95,  90.) 

IVo.  13§. 

UNDERTAKING   DY   nEFENDANT  WHO   HEaUIRES   RETURN  OK   THE 
PROPERTY. 

Ante,  ^359. 
(Title  of  action.) 

Whereas  C.  D.,  the  defendant  in  this  cause,  requires 
the  return  to  him  of  certain  personal  property  taken  by  H  C,  sheriff 
of  the  county  of  in  this  action,  upon  the  affidavit  and  order  of 

the  plaintifl'  under  the  provisions  of  the  Code,  for  the  obtaining 
possession  of  personal  property,  to  wit : 

Now  therefore  we,  E.  F.  and  G.  H.,  farmers,  of  are  bound 

in  the  sum  of  (at  least  double  the  value  of  the  [»roperty  as  stated  in 
the  plaintiff's  aflidavit,)  for  the  delivery  of  such  property  to  the 
plaintiff,  if  delivery  thereof  be  adjudged,  and  for  the  payment  to  him 
of  such  sum  as  may  for  any  cause  be  recovered  against  the  defendant. 

(Signed,  acknowledged,  and  surety  to  justify,  as  Nos.  95,  90.) 

No.  129. 

RETURN  TO  ORDER  FOR  DELIVERY  OF  PERSONAL  PROPERTY. 

County  of  ss.     I  certify  and  return  that  on  the  day 

of,  &c.,  I  executed  the  order  endorsed  hereon,  for  the  delivery  of  the 
personal  property  mentioned  in  the  within  affidavit,  by  taking  posses- 
sion of  the  same,  (or  all  thereof  to  be  found  in  my  county,  to  wit : 
)  and  at  the  same  time  I  delivered  to  the  defendant  (or  to  the 
agent  of  the  defendant  from  whom  the  possession  of  the  property  was 
taken ;  or,  and  the  said  defendant  and  his  agent  from  whom  the 
possession  of  the  property  was  taken  not  being  found,  I  left  at  the 
usual  place  of  abode  of  the  defendant  (or  said  agent)  with  a  person  of 
suitable  age  and  discretion,)  a  copy  of  the  within  affidavit  and  order 
and  of  the  undertaking  required  in  such  case,  duly  apjtroved  bv  me,' 
(and  the  defendant  having  failed  to  except  to  the  surety  therein,  and 
also  having  omitted  to  require  a  return  of  the  said  property.)'  and 
no  person  other  than  the  defendant  having  made  claim  thereto,  I  did. 
at  the  expiration  of  the  time  prescribed  by  the  statute  for  seeking 
such  delivery  and  making  such  claim,  to  wit:  on  the  day  of 

18  deliver  the  property  so  taken  to  the  plaintiff  as 


192  FORMS  FOR  SHERIFFS. 

by  the  said  order  I  am  commanded  ;  and  that  on  the  day  of 

18  I  dehvered  said  undcrtiiking  to  the  defendant. 

Fees  d  II.  C,  JShcrifl"  of        county. 


.^o.  130. 

WIIK.RE    TIIK    DKFKNDANT     I'.XCEI'TS    TO    THE    SURETY. 

After  '  add  :  "  And  the  defendant  having  excepted  to  the  surety 
therein,  and  the  same  having  duly  justified,"  and  then  from  *  to  the 
end. 


Mo.  131. 

WHEBE    TOE    DEFENDANT    CLAIMS     THE     KK-DELIVEBV    OF    THE    PROPERTV. 

After  '  add  :  And  the  defendant  not  having  excepted  to  such  bail, 
claimed  the  re-delivery  of  tlie  said  property  by  giving  to  me  an 
undertaking  in  due  form,  and  the  sureties  therein  having  justified,  and 
no  other  person  having  made  claim  to  the  said  properly,  in  due  form 
of  hiw,  I  re-delivered  the  said  property  to  the  defendant,  together  with 
the  first  mentioned  undertaking,  and  the  last  mentioned  undertaking, 
to  the  plaintiff. 


No.  133. 

WHERE      ANOTHER      CLAIMS      THE      PROPERTY      AM)      THE     PLAINTIFF 
INDEMNIFIES. 

After  '  add  :  And  one  A.  B.  having  made  claim  to  said  property  by 
afTidavrt  in  due  form  of  law,  and  the  jilaintiff  having  ijiven  the  indem- 
nity recjiiired  by  the  Code,  1  delivered  the  said  proi>erty  to  the  said 
plamtifT,  and  the  first  mentioned  undertaking  to  the  defendant. 


]fo.  133. 

WHERE    THE    PLAINTIFF    REFUSES      TO    GIVE    THE    INDEMNITY. 

After  '  add  .  And  one  A.  B.  having  made  claim  to  said  property  in 
due  form  of  law,  and  the  plainlilV  iieglectincr  and  refusing  to  give  the 
necessary  in<lemnily  after  being  thereto  required,  I  reliiuiuished  the 
possession  of  the  said  property  and  delivered  the  said  undertaking  to 
the  defendant. 


FORMS  FOR  SHERIFFS.  493 

IVo.  131. 

ENDORSEMENT     OF     RECEIPT    OF    ATTACHMENT      ACAINHT    A    KOREIGN 
CORPOBATION,  ETC. 

Ante,  ^3C0, 

Received  18  at  o'clock,  P.  M. 

IL  C,  SherifTof        county. 

No.  135. 

CERTIFICATE    ON    COPY    OF    ATTACHMENT    SERVED. 

I  certify  that  the  within  is  a  copy  of  the  attachment  issued  in  this 
action,  with  ail  the  endorsements  thereon.     Dated  18 

H.  C,  Sheriff  of        county. 

No.  136. 

NOTICE    TO    CREDITORS    OF    WHAT    ATTACHED. 

Ante,  ^371. 
(Title  of  action.) 
To  A.  B., 

(or  The  Insurance  Company,) 

(or  The  Bank.) 

Take  notice  that,  by  virtue  of  the 
warrant  of  attachment  issued  in  this  cause,  with  a  certified  copy  of 
which  you  are  herewith  served,  I  attach  all  the  interest  of  the 
defendant  (in  a  debt  due  from  you  to  the  said  defendant  of  about 
8  ;  or,  in  and  to  the  shares  or  capital  stock  of  said  bank  with 

the  interest,  dividends  or  profits  thereon  owned  by  the  defendant ;  or, 
the  claim  of  the  defendant  against  said   insurance  com}iany   for  loss 
by  fire  on  a  policy  of  insurance  by  said  company  issued  about,  6z,c.) 
Dated,  18  Yours,  «Sic. 

H.  C,  Sheriff  of        county. 

No.  137. 

INVENTORY      AND    APPRAISAL. 
Ante,  ^372. 

(Title  of  action.) 

Inventory  of  the  property  of  the  defendant  in  this 
cause,  so  far  as  the  same  has  come  to  the  hands,  possession  or  know- 
ledge of  the  sheriff  of  the  county  of  by  virtue  of  a  warrant 


491  FORMS    FOR    SUFRIFFS. 

of  altachment  issued  by  the  Hon.  taken  with  the  assistance 

of  two  (iisiiitcrestcil  Irecholders  summoned   ami  sworn  by  the 

said  sheriff"  to  assist  in  taking  the  same  tins  day  ol 

A   claim   against  A.    15  ,  in   favor  of  the  defendant,  for 
8100,  SlOO  00 

A  claim  against  C.  IX,  for  8250,  but  of  no  value,  as  C. 
D.  is  insolvent. 

A  claim  atrainst  the  Insurance  Company  uj'on  a 

j>olicy  of  insurance  to  the  defendant,  dated  on  or  about 
is  for  8  on  which  there  is  claimed  to  be 

due  81,000,  but  which  the  company  repudiate. 

A  house  and  lot  on  street,  lately  occupied 

by  the  defendant,  700  00 

One  bay  horse,  SO  00 

One  mahogany  sofa,  25  00 


(Signed)     A.  R., 
C.  D., 
H.  C,  Sheriff  of        county 


r   n    1  Appraisers. 


IVo.  13§. 

OATII    OF     AIMMlAiaERS    ANNEXED. 

County  of  ss.     A.  B.  and  C.  D.,  the  above  named  appraisers, 

being  severally  duly  sworn,  each  for  himself  deposeth  and  sailh  that 
he  will  well  and  truly  make  a  full  and  just  inventory,  and  well  and 
truly  appraise  the  property  of  the  defendant  in  the  above  entitled 
cause  seized  by  the  sheriff  of  county  by  virtue  of  the  attach- 

ment in  said  cause,  according  to  the  best  of  his  ability. 

Subscribed  and  sworn  before  me  A.  B. 

this  day  of  18  C.  D. 

H.  C,  Sheriff  of        county. 


!Vo.  130. 

FORM    OF    TIIK    OATH    ADMINISTERED. 

You  nn<l    each   of  you  shall   well   and   trulv   make   a    full    and  just 

inventory,  and  wt-ll  and  truly  appraise   the  property  ol  the  delendant 

seized  by  the  sheriff  of  county  by  virtue  of  the 

attachment  issued  a^'ainsl  iiim  at  the  suit  of  according  to  the 

best  of  your  ability.     So  help  you  God. 


FORMS   FOR  SHERIFFS.  495 

IVo.  1  10. 

•CnilTIFICATn    KND0R8KI)    ON    INVENTORY. 

I  certify  that  the  within  is  the  inventory  and  appraisal  of  the 
property  of  the  defendant  within  named,  attached  by  me  under  and 
pursuant  to  the  warrant  of  attachment  issued  hy  the  Hon. 

Dated  18  H.  C,  Sheriff  of        county. 

No.  111. 

BOND    OF    INDEMNITY    UPON    A    CLAIM    TO    ATTACHED    PROPERTY. 

(Penal  part  as  No.  12.) 

Whereas  an  attachment  has  been  issued  in  an  action  in  the  supreme 
court  in  favor  of  the  above  named  A.  B.,  against  C.  D.,  upon  which 
the  above  named  H.  C„  slierilF  of  the  said  county  of  has 

attached  and  taken  into  his  custody  certain  goods  and  chattels,  viz  : 

And  whereas  G.  H.,  of  or  some  other  person,  claims  the 

same,  (and  a  jury  has,  by  their  inquisition,  found  the  said  property  in 
said  claimant :) 

Now  therefore,  the  condition  of  this  obligation  is  such,  that  if  the 
above  bounden  A.  B.  shall  and  does  well  and  sufficiently  indemnify, 
save  and  keep  harmless  the  said  H.  C,  sheriff  as  aforesaid,  of,  from 
and  against  the  said  claim,  and  shall  pay  all  costs  and  damages  that 
the  said  H.  C.  may  incur  or  be  put  to  in  consequence  of  such  claim, 
and  shall  pay  off,  discharge  and  cancel  all  judgments,  damages  and 
costs  that  may  be  rendered  against  said  H.  C.  by  reason  of  such 
seizure,  then  this  obligation  to  be  void,  otherwise  to  be  and  remain  in 
full  force  and  virtue. 

Sealed  and  delivered  in  the 
presence  of 

(Add  affidavit  of  justification  and  acknowledgement  as  Nos.  95,  9G.) 

IVo.  143. 

UNDERTAKING    BY    PLAINTIFF    TO     PROSECUTE     ACTIONS    CONCERNING 
ATTACHED    PROPERTY. 

Ante,  ^375. 
(Title  of  action.) 

Whereas  H.  C,  sheriff  of  the  county  of 
has  attached  a  certain  claim  of  the  defendant  against  A.  B.,  concerning 
which  it  is  necessary  to  commence  one  or  more  actions  ;  and  whereas 
said  sheriff  has  consented  that  such  action  may  be  prosecuted  by  the 
above  named  plaintiff,  or  under  his  direction : 


496  FORMS  FOR  SIIFRIFFS.  * 

Now  therefore,  we  of  riierchants,  undertake  that 

the  i>l:untiir  will  imlcinnify  said  H.  C,  sherilV  as  aforesaid,  from  all 
damages,  costs  and  expenses  on  account  of  said  actions,  or  eilijcr  of 
them,  not  exceeding  the  sum  of  92CA)  in  any  one  action. 

Dated  IS 

(Surety  to  sign,  justify  and  acknowledge  as  Nos.  U5,  DO.) 


I\o.  1  1.1. 

RETURN    T(J    THE    ATTACHMENT. 
Ante,^<>379,  381,&c. 

County  of  ss.     I  have  executed  the  within  writ,  by  attach* 

ing  all  the  property  of  the  defendant  to  be  found  in  my  county,  and 
and  making  and  filing  an  inventory  and  apjiraisal  thereof  in  due  form, 
and  taking  possession  of  such  property  ;  that  one  A.  B.  having  made 
claim  to  the  same  (or  to  the  following,  to  wit :  )  in  due  form 

of  law,  and  a  jury  duly  summonetl  and  sworn  by  nie  by  their  inquest 
having  found  the  title  to  the  said  pro|)erty  in  the  said  claimant,  and 
the  attaching  creditor  having  neglected  and  refused,  after  being  duly 
thereunto  required,  to  indemnify  me  against  said  claim,  I  released  to 
the  said  claimant  the  property  so  claimed  by  him,  (or,  the  attaching 
creditor  having  indemnified  me,  I  refused  to  deliver  up  such  property 
to  such  claimant,  notwithstanding  such  finding  ;)  and  that  the  perishable 
property  mentioned  in  the  said  inventory  was  by  me  sold  in  due  form 
of  law  under  the  direction  of  the  olTicer  issuing  the  warrant  for  the 
sum  of  over  and  above   my  expenses,  allowed  by  such 

officer  ;  and  that  the  vessel  (share  or  interest  therein)  mentioned  in 
such  inventory  was  delivered  up  by  me  under  and  pursuant  to  the 
direction  of  the  said  officer,  (or  was  sold  by  me  under  the  direction  of 
said  officer,  at  the  time  and  place  and  in  the  manner  jtrescribed  by  said 
officer,  for  the  sum  of  over  and  above  my  expenses  allowed 

by  the  said  officer  ;)  and  that  I  have  collected  of  the  debts  due  the 
said  defendant  upon  the  claim  against  A.  B.  for  the  sum  of 

and  that  I  commenced  an  action  against  C.  D.  in  the  supreme 
court  on  the  claim  against  him,  and  that  judgment  was  oHtained 
thereon,  but  nothing  has  been  collected  ujion  the  execution  issued 
therein  ;  an<i  that  I  have  retained  possession  of  the  property  and 
the  proceeds  of  such  sales,  and  the  moneys  realized  on  said  dei)ts 
until  the  issuing  an«l  delivery  to  me  of  an  execution  on  the  judgment 
in  this  cause  ;  and  that  I  have  applied  the  amount  of  such  sales, 
deducting  my  expenses  first  allowed  by  Huch  officer,  upon  said  execution 
to  the  amount  of  and  that  I  have  levied  upon  the  property 


FORMS  FOR  SHERIFFS.  497 

so  attached,  and  have  sold  the  following,  to  wit :  for  which 

I  hare  realized  the  balance  of  the  said  execution,  besides  my  fees ;  and 
that  I  have  delivered  the  balance  of  said  i>roi)erty  to  the  defendant. 
Dated  18  il.  ^..  'Sheriff. 

Ifo.  144. 

WHEN    THE    WARRANT    HAS    BEEN    DISCHARGED. 

Ante,  (;378. 

•    State  as  above  what  has  been  done,  and  then  add  :  "  that  having 
been  served  with  an  order  of  the  court,  discharging  the  said  warrant 
of  attachment,  I  released  the  said  proj)erty  from  said  attachment." 
Dated  18  H-  C.,  Sheriff. 

Wo.  115. 

RETURN    TO    ATTACHMENT    AGAINST    AN    ABSCONDING,  CONCEALED    OR 
NON-RESIDENT    DEBTOR,  UNDER    THE    R.    8. 

Aute,  ()380. 

As  in  No.  143,  so  far  as  proceedings  conform,  and  add  :  "  that 
having  been  served^with  the  order  of  the  court  appointing  A.  B.,  C.  D. 
and  E.  F.  trustees  of  the  property  and  eflects  of  the  defendant,  and 
also  with  the  certificate  of  the  clerk  of  the  court  that  they  had  duly 
filed  the  security  required  by  law  and  taken  upon  themselves  the  duties 
of  such  trustees,  I  have  delivered  over  to  said  trustees  all  the  property, 
money  and  effects  of  the  defendant  in  my  hands,  received  by  me 
under  and  pursuant  to  such  attachment." 

IVo.  146. 

RETURN    TO    WARRANT    FOR    SEIZURE    OF    SHIPS. 
Ante,  ^392. 

In  pursuance  of  the  within  attachment,  I  attached  and  seized  the 
vessel  named  within  on  the  day  of  18  together 

with  her  tackle,  apparel  and  furniture,  and  she  is  now  and  ever  since 
hath  been  safely  kept  by  me  as  I  am  within  commanded. 

Dated  '     18  H.  C,  Sherifl^ 

Ifo.  14T. 

INVENTORY    ANNEXED. 
Ante,  ^350. 
A  just  and  true  inventory  made  and  signed  by  me,  of  all  the  property 
seized  by  virtue  of  the  annexed  w^arrant ;  that  is  to  say,  one  sloop 
64 


498  FORMS  roil    SI  I EK I  ITS. 

called  the  with  the  following  tackle,  apparel  and  furniture,  to 

wit : 

Dated  18  H.  C,  SheritT. 


:vo.  lis. 

NOTICE    OF    SALE    OF    VF.SSEL    UNDER    ORDER    OF    OFFICER. 

AiiUj,  v3%. 

Slierifl's  Sale. 

County  of  s.s.   J]y  virtue  of  a  writ  of  attachment  issued  by 

Hon.  a  ju.stice  of  the  supreme  court  of  this  state,  to  me  directed 

and  delivered  for  execution,  against  the  sloop  her  tackle,  apparel 

and  furniture,  and  also  of  the  order  of  the  said  justice  directing  the 
sale  of  the  said  vessel,  her  tackle,  apparel  and  furniture,  I  shall  expose 
the  same  for  sale  at,  «kc.,  on,  &c. 

Dated  18  H.  C,  SherifT. 

No.  119. 

REPORT    OF    SALE    UNDER    ORDER. 
Ante,  (;305. 

In  the  matter  of  the  ship  (or  sloop)  ) 

attached  under  a  warrant  issued  on  the  > 

ajiplication  of  ) 

In  pursuance  of  the  statute  in  such  case  made  and  provided,  I,  the 
sheriff  of  county,  to  whom  the  warrant  of  attachment  in  the 

above  entitled  matter  was  directeil  and  delivered  for  execution,  do 
certify  and  return  to  the  Hon.  justice  of  the  supreme  court  of 

this  state,  by  \vh«»m  the  said  warrant  was  issued,  that  in  pursuance  of 
the  said  warrant,  and  of  the  order  made  by  the  said  justice,  bearing 
date  the  day  of  I  sold  the  said  vessel,  her  tackle  and 

apjtarel,  at  public  auction,  at,  &c.,  on,  &c.,  after  having  first  duly 
advertised  the  same  for  sale,  in  llie  maimer  j)rovided  by  law  ;  and  that 
the  said  property  was  then  and  there  sold  for  the  sum  of  that 

being  the  highest  sum  bid  therefor,  and  that  I  have  received  the  amount 
thereof  and  hold  the  same  subject  to  the  order  of  the  said  justice. 

Dated  18  H.  C,  Sherifl"  of  county. 

No.  1.50. 

KKTURN    TO    'I' HE    ATTACHMENT. 
AnU;,  ^890. 

I  certify  and  return   that  in   pursuance  of  the  attachment  hereto 
annexed,  I  seized  the  vessel,  her  tackle,  furniture  and  apparel,  and 


FORMS  FOR  SHERIFFS.  499 

made  and  returned  an  inventory  thereof,  in  due  form  of  law,  to  the 
lion.  the  justice  of  the  supreme  court  issuing  such  warrant,  and 

retained  the  property  seized  in  my  possession  ;  that  in  pursuance  of  the 
order  of  said  justice  I  sold  the  said  vessel,  her  tackle,  apparel  and 
furniture,  in  the  manner  prescribed  by  law  ;  and  that  after  having 
retained  my  fees  and  expenses  in  seizing,  preserving,  \^atching  and 
selling  such  vessel,  allowed  by  said  ofTicer,  I  paid,  out  of  the  balance, 
to  the  several  attaching  creditors  entitled  tliereto,  according  to  the 
distribution  thereof  made  by  said  officer,  as  follows: 

To  A.  13.,  tiie  sum  of 

To  C.  D.,  the  sum  of 

And  there  remaining  a  surplus  of  in  my  hands,  after 

paying  all  the  hens  aforesaid,  after  deducting  my  commissions  thereon 
allowed  by  such  officer,  I  paid  such  sur|»lus  to  the  owner  of 

said  vessel. 

Dated  18  H.  C,  Sheriff  of        county. 

No.  151. 

ENDORSEMENT    ON    THE    ATTACHMENT. 

The  execution  of  the  within  attachment  will  appear  by  the  schedule 
hereto  annexed.  II.  C,  Sheriff. 

No.  152. 

RETURN.  TO    ATTACHMENT    WHERE    THE    VESSEL    IS    DISCHARGED. 

Ante,  ^)393. 

I  seized  the  within  named  vessel  as  I  am  within  commanded,  and 
kept  her  safely,  until  I  was  served  with  the  order  of  discharge  made 
by  the  Hon.  justice  of  the  supreme  court,  by  whom  the  within 

warrant  was  issued,  and  that  thereupon  I  released  and  discharged  said 
vessel,  her  apparel  and  furniture. 

Dated  185  H.  C,  Sheriff  of        county. 

No.  154. 

BAIL  BOND  ON  ARREST  ON  NE  EXEAT. 

Ante,  ^397,  Sec. 

(Penal  part  as  No.  12.) 

Whereas  the  said  has  been  arrested  under  and  by  virtue  of 

a  writ  of  ne  exeat  issued  out  of  and  under  the  seal  of  the  supreme 

court  of  this  state,  by  which  the  said  sheriff  was  required  to  hold  the 

said  to  bail  in  the  sum  of  dollars :  Now  therefore,  the 


r>00  FORMS  FOR  SHERIFFS. 

condition  of  the  said  obligation  is  such  that  if  the  said  shall  go 

or  depart,  or  attempt  to  depart  from  or  beyond  the  said  state,  without 
the  leave  of  surli  court,  then  the  said  and  each  of  them  will  i)ay 

or  cause  to  be  i)aid  unto  the  said  sherilF  as  aforesaid,  the  said 

sum  of  dollars  ;  but  if  the  said  shall  not  go  or  depart, 

or  attempt  to  go  or  depart  from  or  beyond  the  said  stale  without  leave 
of  such  court,  then  and  in  that  case  this  obligation  shall  be  void 
and  of  no  ellect ;  otherwise  to  remain  in  full  force  and  virtue. 

Signed,  sealed  and  delivered 
in  the  presence  of 

(To  be  signed,  and  afTKiavit  of  justification  and  acknowledgement 
as  Nos.  U5,  90.) 


No.  154. 

AFFIDAVIT    OK    THE     SHERIFF    TO    COPY    OF    BOND. 

Ante,  ^401. 
(Title  of  action.) 

County  of  ss.     II.  C,  sheriff  of  county,  being  sworn, 

says  that  the  within  is  a  true  copy  of  the  bond  taken  by  him  on  the 
arrest  of  the  defendant   therein  named,  and  now  in  his   possession, 
with  all  the  endorsements  thereon. 
Subscribed  and  sworn  before  me, 

this  day  of  II.  C. 


Ifo.  1S5. 

RETURN     TO    NE    EXEAT. 
Antv,  (;400. 
I  have   arrested    the  within  defendant,  and  have  him  now  in  the 
common  jail  of  county,  for  want  of  bail. 

H.  C,  Sheriff  of        county. 


No.  150. 

EETUBN    WIIKRK    THE    DEPENDANT    HAS    IlEEN    LET    TO    RAIL. 
Anto,  ^;399. 
I  have  arrested  the  defendant,  and  have  taken  from  him  a  bond  with 
as  his  surely  in  the  i)enalty  marked  on  the  writ. 

H.  C,  Sheriff. 


FORMS  FOR  SHERIFFS.  501 


No.  157. 


ENDORSEMENT    OF    UECEIPT    OE    EXECUTION. 
Ante,  ^406. 
Received  18  at  o'clock,  P.  M. 

H.  C,  Sheriir  of        county. 


Ifo.  158.      , 

ADMISSION    OF    RECEIPT     OF    EXECUTION. 

Ante,  ^406. 

(Title  of  action.) 

Execution  against  the  defendant  (or  plaintiff,)  for 
9  dated  and  returnable  within  sixty  days  after  its  receipt 

to  the  office  of  the  clerk  of  county,  with  directions  endorsed  to 

collect  S  and  interest  from  and  fees. 

A.  B.,  Plaintiff's  Attorney. 

Received  the  above  execution  this  day  of  18 

at  o'clock,  A.  M. 

H.  C,  Sheriff  of        county. 

(Or,  Received  an  execution  of  which  the  within  is  a  copy  this 
day  of  18  H.  C,  Sheriff.) 


No.  159. 

sheriff's     receipt     for     moneys     RECEIVED    FROM    A    PERSON    INDEBTED 
TO    THE    JUDGMENT    DEBTOR. 

Ante,  ^416. 

(Title  of  action.) 

Judgment  docketed         18     for        dollars,  in 
county ;  and  an  execution  issued  thereon  to  the  sheriff  of        county, 
where  a  transcript  of  such  judgment  has  been  filed,  with  directions 
endorsed  to  collect  the  sum  of  '  dollars  and  interest  from 

besides  fees. 

A.  B.,  Plaintiff's  Attorney. 

Received  from  C.  D.,  the  sum  of  dollars,  to  apply  on  the 

above   execution,  now   in   my  hands,  in  pursuance   of  section   two 
hundred  and  ninety-three  of  the  Code. 

Dated  185  H.  C,  Sheriff. 


502  FORMS  FOR    SflFRIFl-S. 

.\o.  lOO. 

KND0R8EMENT    OF  LKVY. 
Ante,  ^428. 
Levied  this  day  of  IS  nt  o'clock, 

A.  M.,  on  the  following  i)roperty,  under  and  by  virtue  of  the  within 
execution,  on  the  premises  of  the  defendant  in  to  wit : 

H.  C,  Sheriir. 
13y  D.  E.,  Deputy. 

IVo.  161. 

WUKN    AtlTIi  I-ES    ARE    TOO      NUMEROUS-  TO    ENDORSE    ON    EXECUTION. 

(Title  of  action.) 

Levied  this  day  of  18  at 

o'clock,  P.  M.,  on  the  following  property,  in  the  possession  of 
the  defendant,  under  and  by  virtue  of  the  within  execution,  to  wit : 

H.  C,  SherifT  of        county.  • 

No.  162. 

ENDOnSEMENT    0\    THE     EXECUTION    IN    SUCH    CASE. 

I  have  levied  on  the  property  mentioned  in  the  annexed  scharlule. 
under  the  within  execution,  as  therein  stated. 

No.  163. 

RECEIPT    FOR    TROPERTY    LEVIED    ON. 
Ante,  (;4:35. 
(Title  of  action.) 

Execution  for  nnd  interest  from 

besides  sherifT's  fees  ;  received  by  me  18     for  execution. 

I  have  levied  upon  the  following  property  upon  the  premises  of 
the  defendant  -ind  in  his  possession  of  under  said  execution 

to  wit : 

H.  C,  SherifT  of        county. 

I  hereby  acknowledge  that  I  have  received  the  above  described 
pro|)crty,  so  levied  upon  by  the  sherifT  of  county,  from  said 

sherid,  and  hereby  promise  and  undertake  to  return  the  same  and 
every  part  thereof  to  the  said  sheriff  on  demand,  or  pay  the  above 
judgment  and  sherifT's  fees. 

Dated,  &c.  (Signed)     A.  B. 


FORMS  FOR  SHERIFFS.  503 

IVo.  101. 

NOTICE    TO    PARTY    01'     CLAIM     TO    riKJl'KRTV,  ANI»     OF    CALMN*;    JIRY    TO 
TRY    SUCH    CLAIM. 

(Title  of  action.) 

Take  notice  that  A.  U.  makes  claim  to  the  property 
levied  on  (or  attached)  by  me  under  the  execution  (or  attac-hrnenl) 
issued  out  ol"  the  supreme  court  in  favor  of  C.  D.  against  E.  P.,  and 
that  I  shall  proceed  to  try  the  claim  of  the  said  A.  B.  before  a  jury  to 
be  summoned  by  me  for  that  purpose  at,  Sec,  on,  &.c. 

Yours,  &c., 

II.  C,  SherifT  of        county. 
To  A.  B.,  Claimant  ; 

C.  D.,  PlaintilPs  Attorney  ; 
E.  F.,  Defendant. 

IVo.   16.5. 

OATH    OF    JURORS    ON    CLAIM    OF    PROPERTY. 
Ante//>4.38,  374. 
You  and  each  of  you  do  swear  that  you  will  well   and  truly  try  the 
claim  of  A.  B.  to  the  property  levied  on  (or  attached)  by  thesherifl'  of 
county,  under  the  execution  (or  attachment)  in  favor  of  C. 
D.  at  the  suit  of  E.  F.,  and  true  inquisition  make  according  to  the 
evidence.     So  help  you  God. 

No.  166. 

OATH    TO    WITNESS. 
Ante,  %438,  374. 

You  do  sMrear  that  the  evidence  you  shall  give  to  the  jury,  touching 

the  claim  of  A.  B.  to  the  property  levied  (or  attached)  by  the  sheriff  of 

county,  under  the  execution  (or  attachment)  in  favor  of  C. 

D.  against  E.  F.  shall  be  the  truth,  the  whole  truth,  and  nothing  but 

the  truth.     So  help  you  God. 

No.  i6r. 

INaUlSlTION    OF    JURY    UPON    fLAIM    TO    PROPERTY. 

(Title  of  action.) 

We  whose  names  are  hereto  signed,  being  a  jury  summoned 
and  sworn  by  the  sheriff  of  county  to  try  the  claim  of  A.  B, 

to  the  property  levied  on  (or  attached)  by  the  said  sheriff  of      county 


501  FORMS    FOR   SHERIFFS. 

under  the  execution  (or  allacluuent)  in  favor  <»f  C.  1).  against  E.  F., 
to  wit,  one  horse,  iSic,  do  uju>n  our  oaths  say  that  llie  title  to 

the  said  property  is  (or  is  not)  in  the  said  A.  IJ. 
Witness  our  hands  and  seals,  at,  cScc. 

Jurors.  Jurors. 

(L.  S.)  (L.  S.) 

(L.  S.)  (L.  S.) 

(L.  S.)  (L.  S.)  6lc. 

H.  C,  SherifTof        county. 


No,  168. 

BOND    OF    IM)1;MMTY    AGAINST    A    LEVY. 

Ante,  (;438. 

(The  penal  part  as  No.  12.) 

Whereas         has  issued  an  execution  on  a  judgment  in  the  supreme 
court  in  his  favor  against  for  dollars  to  the  said 

as  sheriff  of  county  ;  and  whereas* 

Now  therefore,  the  condition  of  the  above  obligation  is  such,  that  if 
the  above  bounden  shall  well  and  truly  keep  and  save  harmless 

and  indemnify  the  said  sheriff  as  aforesaid,  and  all  and  every 

person  and  persons  aiding  and  assisting  him  in  the  premises,  of  and 
from  all  harm,  loss,  trouble,  damages,  costs,  suits  and  actions,  judgments 
and  executions  that  shall  or  may  at  anytime  arise,  come  or  be  brought 
against  him,  them  or  any  of  them  ;  as  well  for  the  levying  and  making 
sale  under  and  by  virtue  of  such  process,  of  any  of  said  goods,  as  for 
entering  any  shoi)S,  stores,  dwelling,  or  other  houses  or  buildings,  for 
the  purpose  of  taking  said  goods  and  chattels  ;  antl  shall  pay  off,  cancel 
and  discharge  any  judL'ment,  claim  or  demand  that  may  be  recovered 
ari.se,  or  be  made  against  the  said  as  such  sheriff,  or  of  the 

said  persons  so  aiding  or  assisting,  or  either  of  them,  then  this  obligation 
to  be  void,  otherwise  to  remain  in  full  force. 

Signed,  sealed  and  delivered  (L.  S.) 

in  the  presence  of  (L.  tS.) 

(L.  S.) 

(To  be   signed,    and    affidavit   of  justification,   and   certificate    of 
acknowledgment,  as  in  Nos.  95,  90.) 


No.  169. 

WHKN    THK    I.KVV    IH      M\ni:    IlV    DIRKCTION     OF    THE    PLAINTIFF. 

The  same  ns  the  last,  inserting  after  the  asterisk  .  "  by  direction  of 


FORMS   FOR  SIIRRIFFS.  505 

said    ]ilainti(r,   said  as  such  sherill',  liy  liis  dcjiuty,  lias  seized 

and  levied  on  personal  properly,  consisting  of 

I¥o.  I  TO. 

wiir.Rr.   A  JiJUT    HAS   iikkn  cm. i.r.n  to  thy  tiif,  claim. 

The   same    as    No.   KIS,   in.sertin^'   after   the   asterisk:    "the  said 
as  such  sherifl',  did  levy   upon  certain   goods  and  chattels, 
under  such  execution,  supposed  l)y  him  to  belong  to  said  defendant ; 
but  which  were  claimed   by  and  a  jury   duly  called  for  that 

purpose  having  found  that  the  title  to  such  property  was  in  the  said 
claimant ;  and  the  said  plainlifT  refusing  to  assent  that  such  property 
be  released  from  such  levy  ;  but  insisting  that  such  sheriff  should 
retain  such  levy  under  his  execution,  and  that  he  should  sell  the 
property :" 

I¥o.  171. 

WIICRE    GIVEN    HEFORK    TRIAL    OF    CLAIM. 

The   same  as    No.    1G8,    inserting   after  the   asterisk:    "the  said 

as  such   sheriir,  did  levy  upon  certain  goods  and  chattels, 

under  and  by  virtue  of  such  execution,  supposed  by  him  to  belong  to 

said  defendant,  but  which  are  now  claimed  by  or  some  other 

person :" 

No.  172. 

UXDERTAKIVG    OF    IN'DEMNITY     AGAINST     A    LEW. 

Whereas  an  execution  has  been  issued  by  the  clerk  of  the  county 
of  on   the  day   of  185      to  the  sheriff 

of  said  county,  upon  a  judgment   rendered   before  a  justice 

of  tiie  peace  of  said  county,  on  the  day  of  in  favor  of 

against  for  and  docketed  in  his  office  ;  and, 

whereas  the  defendant  has  in  his  possession  certain  personal  property, 
to  wit;  which  he  claims  to  belong  to  some  other  person: 

Now,  therefore,  in  consideration  that  the  said  as 

such  sheriff,  by  himself  or  his  deputy,  or  other  officer,  shall  levy  upon 
the  said  and  shall  sell  the  same  under  said  execution  ;  and, 

also,  in   consideration  of  to  us  paid,  we  do  hereby  agree  to 

indemnify  and  save  harmless  the  said  as  such  sheriff  as  afore- 

said, and  his  deputies  and  othcers,  and  all  persons  executing  or  assist- 
ing in  executing  said  execution,  from  any  costs,  expenses,  judgments 
or  damages,  he  or  they  or  either  of  them  may  suffer,  in  consequence 
of  levying  upon  or  selling  said  and  also  that  we  will  pav  off 

65 


506  roil  MS  I- oil  smiiiiFFS. 

and  ilischarije  all  jiulgineiUs,  (lainam's  aiul  cosls,  thai  saitl  or 

any  of  his  dejmlies,  may  or  "^h  ill   heconie  liable  lo  pay  by  reason  of 
such  levy  or  sale.     Dnieil 

(To   be   signed   and    aHlduvii   of  justifioalion    and    certificale   of 
acknuwledgnienl  annexed,  as  in  i\os.  9Ci,  90.) 


IVo.   1 7:1. 

NOTICE    OK    ."^ALE     OK      rKKSdNAT,    rRoI-KUTY. 
Anto,  ^479. 
Sherifl''s  Sale. 
County  of  ss.     By  virtue  of  an  execution  (or  of  several 

executions)  issued  out  of  the  supreme  court  of  this  state  and  to  me 
directed  and  delivered,  I  have  levied  on  and  taken  all  the  right,  title 
and  interest  of  of,  in,  and  to  the  following  property,  to  wit : 

which  I   shall  expose  to  sale  at  public  vendue,  as  the  law 
directs,  on  the  day  18        at        o'clock  in  the 

noon,  at  the  public  house  kept  by  in  the  town  of  in 

said  county.     Dated  18 

H.  C,  Sheriff. 


No.  171. 

NOTICE    OF    SALK    OK    KEAL    EsiTATE. 
Ante,  (>486. 
Sheriff's  Sale. 
County  of  ss.     By  virtue  of  an  execution,  issued  out  of  the 

supreme  court  of  this  state,  against  the  goods  and  chattels,  lands  and 
tenements  of  I   have  seized  all   the  right  and  title  which  the 

said  had  on  the  day  of  of,  in,  and  to  the  fol- 

lowing described  premises,  which  I  shall  expose  for  sale,  as  the  law 
directs,  at,  &c.,  to  wit:  all  that  certain,  &lc. 

Dated  185 


Ifo.  175. 

rOSTI'oNEMENT    <iK    SAKE. 
Ante,  (>J7r 

The  sale,   pursuant  lo   the   above   notice,  is   postponed    until   the 

day  of  next,  at  the  same  hour  and  place. 

Dated      '  18 

II.  C,  Sheriff. 


FORMS  FOR  siii:riffs.  507 

Nn.  170. 

IlIM,    <tl'    HALK    OF    TKUSONAL    IKOl'iaiTY    ON    KXECUTION. 

(Title  of  action.) 

A.  B.  has  this  dav  l)oiiirlit  at  sherifT's  salo,  under 
an  execution  in  the  above  entitled  cause,  the  following  described  pio- 
l)erty,  to  wit : 

One  bay  horse,  •                        850 

One  single  harness,  10 

One  single  wagon,  30 

$90 
Received  ninety  dollars  in  full  of  the  above  purchase. 
Dated  18  ♦ 

II.  C,  Sheriir  of        county. 

l¥o.  177. 

BILL    OF    SALE    OF    STOCKS    ATTACHED. 
Ante,  ^390,  sub.  2. 
(Title  of  action.) 

By  virtue  of  the  attachment,  issued  in  the  above 
entitled  cause  by  Hon.  a  justice  of  the  supreme  court,  dated 

18  I  attached  and  seized  certain  stocks,  and  the  dividends 
thereon,  and  certain  deposits,  moneys,  and  credits  of  the  defendant, 
which  I  exposed  for  sale,  as  the  law  directs,  on  the  at,  &c. ; 

at  which  sale,  the  following  stocks,  funds  and  rights  were  sold  to 

for  the  following  prices,  to  wit : 
Ten   shares  in  the  capital  stock  of  the  insurance  company 

for  S 

Five  shares  in  the  capital  stock  ofthe  Bank 

Dividends  now  due  thereon, 

A  deposit  in  said  bank  to  the  credit  of  the  defendant,  of  8 

Received  payment  in  full  of  the  amount  of  said  purchase. 
Dated  185  H.  C,  Sheriff. 

If  o.  17§. 

OATH    OF    JURORS    TO     APPRAISE     HOMESTEAD. 
Ante,  ^484,  sub.  3. 
You,  and  each  of  you,  do  swear  that  you  will  well  and  truly  ap- 
praise the  homestead  of  situate  in  the  town  of  in  the 
county  of                and  that  if  in  your  opinion  the  same  is  worth  more 


508  FORMS  FOR  sin:Kii'FS. 

than  $1,000.  then  thai  you  will  say  wlu-tlier  the  same  can  be  conve- 
niently iliviiicd  or  no  ;  and  if  yea,  that  you  will  faiilv  and  honestly  set 
off  to  the  said  so  much  thereof,  with  the  dwelling,  as  shall  in 

your  opinion  be  worth  81.000,  and  no  more  :  so  help  you  Uod. 


AI'l'llAISAL. 

(Title  of  action.) 

We,  whose  names  are  hereto  subscribed,  having 

been  summoned  and  sworn  by  the  sherifl'  of  the  county  of  to 

ajipraise  the   homestead  of  situate  in  the  town  of  in 

saJH  county  ;  and  if  in  our  opinion  the  same  are  worth  more  than 
81,000,  then  that  we  say  whether  the  same  can  be  conveniently  divi- 
ded  or  no  ;  and  if  yea,  that  we  set  olV  to  the  said  so  much 

thereof  as  shall  be  worth  81,000,  and  no  more  ;  do  upon  our  oaths  say 
that  the  said  premises  are  worth  not  to  exceed  the  sum  of  81,000, 
(or  exceed  the  sum  of  81,000.  to  wit,  the  sum  of  81,H00,  and  that  in 
our  opinion  the  same  cannot  be  conveniently  divided)  or  can  be  con- 
veniently divided  ;  and  that  we  have  set  off  to  the  said  the 
following  described  part  thereof,  including  the  (Iwelliiig,  which,  in  our 
opinion,  is  worth  the  sum  of  81,000,  to  wit : 

In  witness  whereof,  we  have   hereto  set  our  hands  and   seals  this 
day  of  185. 

Jurors. 

(L.  S.) 
(L.  S.)  Sec. 
H.  C,  Sheria*. 


\o.  INO. 

NOTICK    TO     DKFENDANT    WIIKN     I'KEMl.SES     CANNoT    UK    DIVIIilIi. 

(Title  of  action.) 

1  certify  that  the  within  is  a  copy  nf  the  appraisal 
of  the  juror-^,  siunmoncd  and  sworn  by  me  to  apj)r;use  the  value  of  the 
homestead  ow  ned  and  occupied  by  you  ;  and  you  will  t:ike  notice,  that 
unless  you  j)ay  to  me  the  surplus  over  the  said  sum  of  81.000.  to  wit, 
the  sum  of  8H00.  within  sixty  days  frf)m  the  receipt  hereof,  that  the 
premises  will  be  sold  by  me,  under  the  execution  in  iliis  tanse. 
Dated,  6tc.  Yours,  &c., 

II.  C,  Sheriff  of  county. 


FORMS  FOR  SHERIFFS.  509 


No.  I*»l. 


CERTIFICATi:    OF    HALK    OF    LANUB. 
Ante,  ^<)489,  528. 
I,  sheriir  of  the  county  of  do  certify  tlint  l)y  virtue 

of  an  execution  issued  out  of  the  supreme  court  of  this  state,  tested 
on  the  day  of  18        I  was  commanded  to  make  of  the 

goods  and  chattels,  lands  and  tenements  of  the  sum  ol 

which  hitcly  received  an;ainst  for  damages  and  costs,  (or 

by  virtue  of  several  executions,  describing  each  separately)  and  for 
want  of  sufficient  goods  and  chattels  of  the  said  to  make  the 

moneys  aforesaid,  then  th:it  I  should  cause  the  same  to  be  made  of  the 
lands  and  tenements  of  the  said  whereof  he  was  seized  on 

and  for  want  of  sufficient  goods  and  chattels  whereof  to  in^ke 
the  moneys  aforesaid,  I  did  seize  the  following  lands,  to  wit: 
and   having  duly  advertised  the  same  in  the  manner  prescribed   by 
statute,  to  be  sold  on  the  day  of  at  in  said  county,  I 

did  expose  the  same  for  sale  at  public  auction  at  the  said  time  and 
place,  (in  separate  parcels)  and  that  the  first  parcel,  as  above  described, 
was  then  and  there  struck  off  to  for  the  sum  of  and  that 

the  second  parcel,  as  herein  described,  was  also  then  and  there  struck 
off  to  the  said  for  the  sum  of  being  together  the  sum  of 

these  being  the  highest  sums  bid  therefor,  respectively. 
And  I,  the  said  sheriff,  as  aforesaid,  do  hereby  certify  that  the 

said.sale  will  become  absolute,  and  the  said  purchaser  will  be  entitled 
to  a  deed  of  said  lands  from  me,  as  sheriff,  aforesaid,  at  the  expiration 
of  fifteen  months  from  the  day  of  said  sale,  viz  :    the  day  of 

18  unless  the  same  shall  be,  before  that  time,  redeemed 
agreeably  to  the  provisions  of  the  statutes  in  such  case  made  and  pro- 
vided. H.  C, 

Sheriff  of  county. 

No.  1§2. 

DEED    ON    SALE    OF    LEASEHOLD    ESTATE. 
Ante,  (/>489,  493. 
This  indenture,  made  this  day  of  18       between 

sheriff  (or  late  sheritV)  of  the  county  of  of  the  first   part,  and 

of  the  second  part : 
Whereas,  bv  virtue  of  a  certain  execution  issued  out  of  the  supreme 
court  of  this  state,  upon  a  judgment  therein,  wherein  was  plain- 

tiff, and  was  defendant,  tested  on  the  day  of  18 

and  directed  and  delivered  to  the  said  party  of  the  first  part,  as  such 


510  Foil  MS  FOR  SI1I;R11-I-5;. 

shcriir,  for  execution  ;  by  wlinh  Iw  was  commanded,  that  of  the  goods 
and  chattels  of  the  said  defendant,  he  should  make  the  aniouiil  of  the 
said  execution,  and  for  amount  of  sutVicicnt  goods  and  chattels  where- 
of to  make  the  same,  then  that  he  should  niake  the  deficiency  thereof 
of  the  lands  and  tenenients  and  chattels  real,  whereof  the  defemlant 
was  seized  on  tiie  day  of  IH       in  whoso  hands  soever  the 

same  might  he  ;  and,  whereas,  for  want  of  goods  and  chattels  sudi- 
cienl  to  make  the  amount  of  the  said  execution,  the  said  sheriiT  seized 
all  the  right,  title  and  interest,  which  said  ilefendant  had  of,  in,  and  to  the 
premises  hereinafter  described,  and  did,  thereupon,  advertise  the  same 
to  be  sold  under  and  |nu\suant  to  such  judgment  and  the  said  execu- 
tion thereon,  at  the  public  house  kept  by  in  the  town  of 
in  said  county,  on  the  day  of  18  at  o'clock  in  llio 
noon,  by  causing  a  notice  thereof  to  be  published  in  a  public 
newspaper  published  in  said  county,  once  in  each  week  for  six  weeks 
successively  next  preceding  said  day,  and  by  allixing  up  in  three  public 
places  in  the  said  town,  where  the  said  premises  are  situated,  and 
where  the  same  were  ailvertiscd  to  be  sold,  on  the  day  of 
18  printed  copies  of  said  notice  ;  and  that  at  the  time  and  place 
aforesaid,  the  said  jiremisps  were  exposed  for  sale  at  public  vendue, 
and  were  then  and  there  struck  ofl'  to  the  party  of  the  second 
part,  for  the  sum  of  dollars,  he  being  the  highest  bidder  therefor; 
and,  wliereas,  the  right,  title  and  interest  of  the  defendant  of,  in,  and 
to  the  said  premises,  consist  of  a  leasehold  estate,  or  interest  therein, 
of  which  there  was  not  at  the  time  of  the  said  sale,  five  years  unexpired 
term  of  said  lease  : 

Now,  this  indenture  witnesseth,  that  the  said  j)arty  of  the  first  part, 
by  virtue  of  the  said  judgment  antl  executi(»n,  and  in  pursuance  of  the 
statute  in  such  case  made  and  provide(],  and  in  consideration  of  the 
sum  of  money  so  bid,  as  aforesaid,  to  him  duly  paid,  hath  sold,  and  by 
these  presents  doth  grant  and  convey  unl(j  the  said  party  of  the  second 
part,  all  the  estate,  right,  title  and  interest,  which  the  said  defendant, 
had  on  the  day  of  or  at  any   lime  afterwards,  of,  in,  and 

to  all 

To  have  and  to  hold  the  said  above  mentioned  and  described  pre- 
mises unto  the  said  party  of  the  second  part,  his  heirs  and  assigns, 
for  and  during  the  remainder  of  the  said  unexpired  term,  as  fully 
and  as  absolutely  as  the  said  party  of  the  first  part,  as  sherilT  of  the 
said  county  can  convey  the  same  by  virtue  of  the  said  judgment  and 
execution,  and  the  laws  relating  thereto. 

In  witness  whereof  the  said  |»arty  of  the  first  part  has  set  his  hand 
and  seal  the  day  and  year  first  above  wrilt<n. 

Signed,  sealed  and  delivered  H.  C,  iSherifT. 

in  the  presence  of  by  A.  11.,  Deputy. 


FORMS    FOR    SIIICRIFFS.  Oil 

IVo.  1§3. 

CKKTinCAIK    Ol'    A(KN(t\VM:nt;Mi:NT. 

County  of  ss.     Personally  appeared  before  me  this  day 

of  the  above  named  A.  II.,  to  me  known  to  be  the  person  who 

executed  the  f(n-egoin<^  deed,  as  deputy  of  the  sheriff  of  said  county, 
and  who  acknowledged  that  he  executed  the  same  for  the  uses  and 
purposes  therein  mentioned.  E.  C, 

Recorder  of  city  of 

No.  1§1. 

CERTIFICATE      ON       REDEMPTION       IIY      Tni:        JUIKiMKNT        DKHTOR, 
GKANTEES,      ETC. 

Ante,  ^^518,  526. 

County  of  ss.     I,  tlie  sheriff  of  said  county,  hereby  certify 

that  on  the  day  of  18       A.  13.,  in  due  form  of  law,  ten- 

dered to  me  the  sum  of  being  the  amount  stated  by  him  to  have 

been  bid  by  the  purchaser,  on  the  sale  by  me  of  the  premises  herein- 
after mentioned,  under  and  by  virtue  of  an  execution  issued  out  of  the 
supreme  court  of  ihis  state,  against  the  said  A.  B.,  (or  against  one 
C.   D.)    in   favor  of  E.   P.,  on   the  day   of  with   interest 

thereon  ;  and  the  said  A.  B.,  then  and  there  claimed  the  right  to 
redeem  the  said  premises,  as  the  judgment  debtor,  (the  grantee  of 
the  judgment  debtor,  heir  or  devisee,)  and  that  thereupon  I  received  the 
moneys  so  tendered  as  aforesaid,  and  have  granted  to  said  A.  B.  this 
my  certificate,  in  conformity  to  the  statute  in  such  case  made  and 
provided.  The  premises  so  redeemed,  or  intended  to  be  redeemed, 
are  described  in  the  certificate  of  the  sale  thereof  as  follows  : 

In  witness  whereof,  I  have  hereto  set  my  hantl   this  dav  of 

18 

H.  C,  Sheriff  of        county. 
(To  be  acknowledged  as  No.  183.) 

I¥o.  1§5. 

CERTIFICATE    OF    REDEMPTION     HY     A    JUNIOR    JUDGMENT    CREDITOR. 

Ante,  ^^618,  526. 
County  of  ss.     I  certify  that  on  the  day  of  A.  B.  ten- 

dered to  me  the  sum  of  and  also  presented  to  me  a  copy  of  the 

docket  of  a  judgment  in  his  favor  (or  in  favor  of  )  against  C.  U., 

rendered  in  the  supreme  court  of  this  state  on  the  day  of 

certified  by  the  clerk  of  said  county,  under  his  seal,  (or  if  the  judgment 


r^\2  FOUMS  FOR  SIli:UIFFS. 

was  not  in  favor  of  said  A.  B..  then  adii)  also  an  nssiiinmont  of  said 
judgment  to  sai<l  A.  H.,  vcrifu-d  by  his  allidavit,  (or  the  alVulavit  of 
a  subscribing  witness  thereto)  ;  also,  an  aHidavil  of  the  said 
A.  H.,  showing  the  amount  due  to  him  on  said  jutli^Muenl;  ami  there- 
upon, said  A.  W.  claimed  to  redeem,  as  a  judgment  creditor,  certain 
premises  sold  by  me,  under  and  by  virtue  of  an  execution  issued  upon 
a  judgment  in  the  supreme  court  of  this  slate,  in  favor  of  against 

on  the  dav  of  and  which  j)remises  are  described  in 

the  certificate  of  sale,  as  follows  : 

Whereupon  I  received  the  moneys  so  tendered,  and  the  papers  so 
presented  by  the  said  A.  B  ,  and  have  granted  to  him  this  my  certifi- 
cate in  conformity  to  the  statute  in  such  case  ntade  and  jjrovided. 
In  witness  whereof,  I  have  hereto  set  my  hand  this  dav  of 

18  H.  C, 

Sherifl'  of  county. 

(To  be  acknowledged  as  No.  183.) 

I>io.  1*0. 

CERTIFICATE    OF     REDF>MPTI0N    «Y    A    SENIOR    JUDGMENT    CREniTOB. 

Ante,  ^f;518,  52G. 
County  of  ss.     I  certify  that  on  the  day  of  A.  B. 

presented  to  me  a  copy  of  the  docket  of  a  judgment,  in  his  favor,  (or 
in  favor  of  )  against  C.  1).,  rendered  in  the  supreme  court  of 

this  state  on  the  day  of  certified    by  the  clerk  of  said 

county  under  his  seal  (if  the  judgment  was  not  in  favor  of  A.  B.,  add) 
also  an  assiiinmcnt  of  said  judgment  to  A.  B.,  verified  by  his  afiidavit, 
(or  by  the  aflidavit  of  a  subscribing  witness  thereto)  ;  also  an 

affidavit  of  purporting  to  be  the  agent  of  said  A.  B.,  showing 

the  amount  due  to  said  A.  B.  on  said  judgment ;  and  thereupon,  said 
A.  B.  claimed  to  redeem,  as  a  senior  judgment  cretlilor,  certain  pre- 
mises sold  l)y  me  under  and  by  virtue  of  an  execution  issued  upon 
certain  judgments  in  the  sui)reme  court  of  this  state,  in  favor  of 
against  on  the  day  of  and  which   premises  are  de- 

scribed in  the  certificate  of  sale,  as  follows  : 

Whereupon  I  received  the  papers  so  presented,  and  have  granted 
to  him  this  my  certificate  (the  same  as  the  last.) 

]\o.  i«*r. 

CERTIFICATE    OF    KKDr.MrTION     llT     A    MORTGAGEE. 
Ant«,  ^^51U,  620. 
Countv  of  ss.     I  certifv  that  on  the  dav  of  A.  B. 


FORMS  FOR  SIIFRIFFS.  513 

tendered  to  me  the  sum  of  rxnd  also  presented  to  mo  a  coj)}'  of 

a  mortgage,  certified  by  the  clerk  of  the  said  county,  where  the  same 
is  recorded  together,  with  a  copy  of  an  assignment  thereof,  verified 
by  his  allidavit,  (or  the  aflidavit  of  a  witness  to  such  assignment) 

and  a  copy  of  the  letters  of  administration,  (or  letters  testamentary) 
and  an  aflidavit  of  said  A.  B.  (or  of  E.  D.,  his  attorney,)  stating  the 
amount  due  (or  to  become)  due  thereon,  and  thereupon,  &c., 
(as  No.  185.) 

No.  IHS. 

VERIFICATION    OF     ASSIGNMENT    OF    JUDGMENT. 
Ante,  ^518,  sub.  2. 
(Title  of  action.) 

County  of  ss.     A.  B.,  being  duly  sworn,  says  that  the  fore- 

going is  a  true  copy  of  the  assignment  of  the  above  entitled  judgment, 
executed  by  the  above  named   jdaintifT  to  this  deponent,  and  of  the 
whole  of  such  assignment ;  and  further  saith  not. 
Subscribed  and  sworn  before  me 
this  day  of 

No.  1§9. 

VERIFICATION    BY      A    WITNESS    OF    ASSIGNMENT    OF    MORTGAGE. 
Ante,  <j519,  sub.  2. 
County  of  ss.     E.  F.,  being  sworn,  says,  that  he  was  present 

when  an  assignment  of  the  mortgage  executed  by  to  and 

recorded  in  the  office  of  the  clerk  of  county,  was  executed  by 

the  mortgagee  therein  to  A.  B.  ;  and  that  there  was  no  subscribing 
witness  to  such  assignment ;  and  he  further  saith  that  he  has  com- 
parefl  the  foregoing  copy  of  said  assignment  with  the  said  original 
assignment  so  executed  in  his  presence,  and  that  the  above  copy  is  a 
true  copy  thereof,  and  of  the  whole  thereof. 
Subscribed  and  sworn  before  me 
this  day  of 

No.  190. 

AFFIDAVIT    OF    AMOUNT    DUE. 
Ante,  ^518,  sub.  3. 

County  of  ss.     A.  B.,  being  duly  sworn,  deposeth  and  saith, 

that  he  is  the  owner  and  holder  of  the  judgment  mentioned  in  the 
foregoing  copy  of  docket  of  judgment,  and  that  there  is  justly  due  to 
this  deponent  this  day,  on  said  judgment,  the  sum  of 
Subscribed  and  sworn  before  me 
this  day  of 

66 


f)\\  FORMS  I'ou  am:iiiFrs. 


AKKlDAVrr    OK     Ai;KNT     OK    AMot.'NT    DUK    ON     Mnlffc:  \i;  V. 

Ante,  ^10,  aub.  4. 

County  of  ss.     E,  F.,  being  sworn,  ilcposclli  and  sailh,  that 

he  is  llie  agent  for  A.  \i.,  who  is  seeking  to  redeem  certain  premises 
from  a  sale  umler  execution  ;  that  there  is  duo  to  said  A.  13.,  on  the 
mortgage  held  by  him,  of  which  a  copy  is  hereto  annexed,  this  day,  the 
sum  of  over  and  al)0ve  all  payments,  and  that  there  is  secured  to 

bo  |>aid  by  said  mortgage  the  full  sum  of  payable  with  interest 

from  this  date,  on  the  day  of  next. 

Subscribed  and  sworn  before  me 
this  day  of 

No.  102. 


aTATKMENT     OF    REDEMPTION    TO    FILE    IN    COUNTY    CLERK  3    OFFICE. 

Auto,  ^625. 

County  of  ss.     I  certify  that  A.  B.  has  this  day  redeemed  the 

following  described  premises,  from  the  sale  maiie  by  me  on  the 
day  of  18       under  and  by  virtue  of  an  execution  issued  on  a 

judgment  in  favor  of  said  A.  13.,  against  C.  D.,  to  wit : 

That  such  redemption  was  made  by  virtue  of  a  judgment  in  favor 
of  E.  F.,  against  C.  D.,  (or  a  mortgage  executed  by  C.  D.  to  E.  F.) 
and  by  him  assigned  to  said  A.  B. ;   that  he  paid  the  sum  of  to 

redeem  ;    and  that  there  was  claimed   to  be  due  on  said  judgment 
(or  mortgage)  at  the  time  of  the  redemption,  the  sum  of 

Dated  II.  C,  SherilF  of  county. 

Wo.  193. 

sheriff's  deed. 
Ante,  ^531,  &c. 

This  Indenture,  made  this  day  of  18       between  II.  C, 

sheriff  (or  late  sherill)   of  the  county   of  of  the  first   i>art,  and 

A.  B  ,  of  the  second  part : 

Whereas,  by  virtue  of  a  certain  execution  (describe  it  as  in  the  cer- 
tificale  of  sale)  directed  and  delivered  to  the  said  sheriff,  commanding 
him  that  of  the  gootis  and  chattels  of  the  said  defendant  he  should 
cause  to  be  made  certain  moneys  in  the  said  writ  specified,  and  if 
sufficient  goods  and  chattels  could  not  be  found,  then  that  he 
should  cause  the  amount  so  specified  to  bo  made  of  the  real  estate 


FORMS  FOIl  SHRRIFFS.  015 

which  said  defendant  had  on  tlie  day  in  the  said  writ  mentioned, 
or  at  anv  time  afterwards,  in  whose  liands  soever  the  same  might 
be,  the  said  (late)  sheriff  did  levy  on  and  seize  all  the  estate,  ri^ht, 
title,  and  interest,  which  the  said  defendant  so  had  of,  in,  and  to 
the   premises  hereinafter  described  ;    and  on  the  day  of 

sold  the  said  jiremises  at  public  vendue,  at  the  public  house  of 
in  the  town  of  in   the   said   county,   havin<,'   Hrst  given   public 

notice  of  the  time  and  jilace  of  such  sale,  by  causing  a  notice  thereof 
to  be  published  in  a  public  newspaper  published  in  said  county,  once 
in  each  week  for  six  weeks  successively  next  preceding  said  day,  and 
by  affixing  up  in  three  public  places  in  the  said  tow^n  where  the  said 
premises  are  situated,  and  where  the  same  were  advertised  to  be  sold, 
on  the  day  of  18       printed  copies  of  said  notice;    and 

that  at  such  sale  the  said  premises  were  struck  off  to  A.  B.  for  the 
sum  of  he  being  the  highest  bidder  therefor,  and  that  being  the 

highest  sum  bid  for  the  same  :  (and,  whereas,  the  said  premises,  after 
the  expiration  of  fifteen  months  from  the  time  of  said  sale,  remained 
unredeemed,  and   no   creditor  of  the  said  hath  acquired  the 

right  and  title  of  the  said  purchaser,  according  to  the  statute :)  (or ; 
and,  "  whereas,  the  said  premises,  after  the  expiration  of  one  year  from 
the  time  of  said  sale,  remained  unredeemed  by  any  person  entitled  to 
make  such  redemption,  within  that  time  ;  and,  whereas,  the  said  A.  B., 
a  creditor  of  the  said  C.  D.,  having  in  his  own  name"  (or  "as  assignee, 
or  representative  or  trustee)  a  judgment  against  the  said  C.  D.,  ren- 
dered before  the  expiration  of  fifteen  months  from  the  time  of  such 
sale,  and  which  was  a  lien  and  charge  upon  the  premises  sold,  hath 
acquired  all  the  right  of  the  said  purchaser  to  said  premises,  within 
the  time  and  in  the  manner  and  form  prescribed  by  the  statute  in  such 
case  made  and  provided,  and  more  than  twenty-four  hours  having 
elapsed  since  the  time  of  the  said  redemption,  and  no  other  creditor  of 
the  said  C.  D.  hath  acquired  the  said  right  from  the  said  A.  B.") 

Now,  this  indenture  witnesseth,  that  the  said  i)arty  of  the  first  part, 
by  virtue  of  the  said  writ,  and  in  pursuance  of  the  statute  in  such  case 
made  and  provided,  and  in  consideration  of  the  sum  of  money  so  bid, 
as  aforesaid,  to  him  duly  paid,  hath  sold,  and  by  these  presents  doth 
grant  and  convey  unto  the  said  party  of  the  second  part,  all  the  estate, 
right,  title  and  interest,  which  the  said  defendant  had  on  the 
day  of  18       or  at  any  time  afterwards,  of,  in,  and  to  all 

To  have  and  to  hold  the  said  above  mentioned  and  described  pre- 
mises unto  the  said' party  of  the  second  part,  his  heirs  and  assigns, 
forever,  as  fully  and  as  absolutely  as  the  said  party  of  the  fust  part,  as 
(late)  sheriff,  as  aforesaid,  can  convey  by  virtue  of  the  said  writ,  and 
the  law  relating  thereto. 


51G  FORMS  FOR  siii:riffs. 

In  witness  whereof,  the  said  (hue)  sht-nll  has  set  his  hand  and  5>eal 
hereto  the  day  and  year  first  ahov«>  wiitttMi. 

Signed,  sealed  and  delivered  H.  C,  SherilV.     (L.  S.) 

in  the  presence  of  by  A.  II.,  Deputy.    ] 

(Certificate  of  arknowIeiigiiu'Ml  as  185.) 

No.  101. 

RETURN    TO    KXKCUTION    OF    NULl.A     nONA. 
Ante,  ^123. 

The  defen(h'\nt  has  no  goods  or  chattels,  lands  or  tenements,  within 
my  county,  whereof  I  can  make  the  amount  of  the  within  execution, 
or  any  part  thereof.     Dated 

Fecs62Acts.  H.  C,  iSheriifof        county. 

Mo.  105. 

WHERE    PART    IS    MADE,  AND    NULLA    BONA    FOR    THE    RESIDUE. 

Ante,  ^423. 

I  have  made  the  sum  of  part  of  the  moneys  directed  to  be 

made  upon  the  within  execution ;  and  I  can  find  no  goods  or  chattels, 

lands  or  tenements,  of  the  within  defendant  in  my  county,  whereof  I 

can  make  the  balance  of  the  said  execution. 

H.  C,  Sheriir  of        county. 

No.  196. 

WHERE    THE    WHOLE    LS    MADE. 

Ante,  ^123. 

I  have  made  the  amount  of  the  within  execution  out  of  the  goods 
and  chattels,  lands  and  tenements  of  the  withir.  defendant,  which  1 
have  ready  at  the  day  and  place  within  mentioned,  to  render  to  the 
within  jdaiiitiff,  as  I  am  within  coininanded,  (or  have  paid  the  same 
to  tl>e  within  plaintiflT)  (or  have  paid  the  same  into  court.) 
Dated  18 

II.  C,  Sheriff  of        county. 
(Or  "  satisfied") 

H.  C,  Sheriff  of        county. 

No.  107. 

Uiuni:    «;(iODH    RKMAIN     UNHOLD    KOR    WANT    OK    Illl)l>KllH. 
Ante,  ^42.3. 

I  have  levied  on  goods  and  chattels  of  the  defendant   under  the 


FORMS  FOR  SHERIFFS.  517 

within  execution,  which  remain  on  liand  for  want  ol'  bidders ;  there- 
fore I  cannot  have  the  moneys  at  the  day  and  place  within  men- 
tionetl,  as  I  am  within  commanded. 

II.  C,  Sheriir  of        county. 

No.  ION. 

NULLA    BONA    WHKRK    IIUT     ONE    OF    TWO    JOINT    DEBTORS    WERE    SERVED. 

Ante,  ^431. 

I  can  find  no  goods  or  chattels,  lands  or  tenements  of  the  within 
defendant  in  my  county;    and   no   goods   or  chattels  of  the 

defendant  owned  by  him  jointly  with  the  said  of  which 

I  can  make  the  amount  of  the  within  execution,  or  any  part  thereof. 

Dated  H.  C,  Sherifl'  of        county. 

No.  199. 

NULLA     BONA    AGAINST    AN    EXECUTOR    OR    ADMINISTRATOR. 

The  within  defendant  has  no  goods  or  chattels,  which  were  of  the 
within  named  deceased  at  the  time  of  his  death,  in  his  hands  to  be 
administered  in  my  county,  whereof  I  can  cause  to  be  made  the 
damages  within  mentioned,  or  any  part  thereof. 

Fees  62|-  cts.  H.  C,  Sheriff  of        county. 


No.  200. 

RETURN     TO     EXECUTION    STAYED    BY    APPEAL    BEFORE    LEVY. 
Ante,  ^423. 
I  certify  and  return,  that  after  the  delivery  of  the  said  execution  to 
me,  and  before  levy  thereunder,  the  execution  of  the  same  was  stayed, 
by  appeal ;    whereupon  I  could  not  have  the  moneys  within  men- 
tioned at  the  return  day  of  such  execution,  as  I  am  within  commanded. 
Fees  62^0.  H.  C,  Sheriff  of        county. 


No.  201. 

WHEN    STAYED    BY    APPEAL  OR    INJUNCTION    AFTER    LEVY. 

After  the  receipt  of  the  within  execution  by  me,  I  levied,  in  due 
form  of  law,  upon  certain  goods  and  chattels  of  the  defendant ;  but 
before  sale  thereof,  the  execution  was  stayed  by  appeal,  (or  by  injunc- 
tion) ;  therefore  I  could  not  make  the  within  moneys  by  the  day 
within  mentioned ;  nevertheless  I  have  the  said  goods  and  chattels  in 


018  I-\)RMS  roll  SlIinilFKS. 

my  custody,  \o  answer  to  the  within  cxt'ciition  when  iho  said  appeal 
shall  be  deternimed  (or  said  injunelion  is  removed.) 

II.  C,  Shentr  of        county. 


litt.   '202. 

Ri:Tin\     WIIKRF.     JimuMENT    OR    K.XKCUTION    18    VACATED. 

After  the  receipt  of  the  within  execution  by  nie,  I  levied,  in  due 
form,  upon  certain  goods  and  chattels  of  the  defendant ;  but  before 
sale,  was  served  with  an  order  of  this  court,  duly  certified  by  the  clerk 
of  county,  vacating  the  said  judgment  (or  setting  aside  the  said 

execution.)  Therefore  I  have  released  the  said  goods  and  chattels 
from  the  said  levy,  and  cannot  have  the  within  moneys  at  the  day  and 
place  within  mentioned,  as  I  am  within  commanded. 

Fees  8  H.  C,  Sheriff  of        county. 


l¥o.  20n. 

RETURN    OF     LEVY     AKD    SALE,    WHLN     THERE    13    A    CONTROVERSY    AS    TO 
TITLE    OF    THE    PROPERTY. 

Ante,  $423. 

On  the  receipt  of  the  within  execution,  I  levied,  in  due  form  of  law 
upon  the  following  property,  then  in  the  jiossession  of  the  defendant, 
in  my  county,  to  wit :  one  bay  horse,  &c. ;  and  that  on  the  day 

of  at  in  said  county,  I  sold  the  following  part  of  such  pro- 

perty, to  wit :  whereby  I  realized  sufTicienl   to  pay   the   within 

execution,  with  interest  and  fees  of  levy  and  sale  ;  and  thereupon  I 
returned  to  the  defendant  the  balance  of  said  property,  to  wit : 

Dated  18  II.  C,  tSherifT  of        county. 

IVo.  30  I. 

WHERE     tioOUS     LEVIED    O.N     ARE    UErLE ViKD. 

Anti-,  $433. 
After  the   coming  to  me  of  the  within   execution,  I  levied,  in  due 
form  of  law,  upon  certain  goods  and  chattels  of  the  within  defendant ; 
but  before  the  sale  thereof,  the  same  were   replevied  and  taken  out  of 
my  custody  by  one  of  the  coroners  of  the  within  county,  at  the 

suit  of  and  I  can  find  in)  other  good.s  or  chatlel.s,  lands  or  tene- 

ments of  the  within  delendant  in  my  county,  whereof  to  make  the 
amount  of  the  within  execution,  or  any  part  thereof. 

II.  C,  Sheritr  of        county. 


FORMS  FOR   SHERIFFS.  {319 


No.  205. 


RETURN    OK    UKSCUE. 
Ante,  ^46. 

After  the  delivery  of  the  within  execution  to  me  for  service,  I  pro- 
ceedeil  to  execute  the  same  by  levying  upon  certain  goods  and  chat- 
tels of  the  defendant,  at  his  dwelling  in  and  while  taking  the 
same  into  my  possession,  under  and  by  virtue  of  the  within  execution, 
I  was  violently  resisted  by  the  said  defendant  and  one  and  then 
and  there  aiding  and  abetting  the  said  defendant ;  who  then  and  there 
violently  rescued  the  said  goods  from  me,  and  I  have  not  been  able  to 
find  the  same  in  my  county  ;  and  I  can  find  no  other  goods  or  chat- 
tels, lands  or  tenements  of  the  within  defendant  in  my  county,  whereof 
I  can  make  the  amount  of  the  within  execution,  or  any  part  thereof. 

H.  C,  Sheriir  of        county. 


IVo.  200. 

RETURN  OF  LOSS  OF  GOODS  BY  FIRE,  ETC. 
Ante,  ^439. 
By  virtue  of  the  within  execution,  I  levied  upon  certain  goods  and 
chattels,  of  the  within  defendant,  and  took  the  same  into  my  custody  ; 
but  that  before  the  same  could  be  sold,  they  were  casually  destroyed 
by  fire  (or  stolen)  without  fault  or  neglect  on  my  part;  wherefore  I 
cannot  have  the  moneys  W'ithin  mentioned,  as  I  am  within  commanded. 

H.  C,  Sheriff  of        county. 


No,  207. 

RETURN     WHERE    THE      MONEYS      REALIZED      HAVE    HERN     ATPLIED     TO    THE 

PAYMENT    OF    OTHER    LIENS. 

Ante,  ^<)45,  47. 

I  levied  on  certain  goods  and  chattels  of  the  defendant,  under  and 
by  virtue  of  the  within  execution,  and  duly  sold  the  same ;  on  (or 
after)  such  sale,  I  was  duly  notified  that  had  a  lien  and  claim 

upon  the  said  goods  and  chattels  to  the  amount  of  S  for  work 

and  labor  bestowed  upon  the  same ;  and  that  I  paid  and  discharged 
said  lien,  and  have  applied  the  balance  of  the  proceeds  of  said  sale, 
to  wit:  8  on  this  execution  ;  and  I  can  find  no  other  goods  or 

chattels,  lands  or  tenements  of  the  defendant,  whereof  I  can  make  the 
amount  of  the  within  execution,  or  any  part  thereof. 

H.  C,  Sheriff  of        county. 


520  FORMS    FOR    SHERIFFS. 


I%o.  t20»». 


NOTICE    OF    SALE    UNDER    DECRKK    iK     KORECLOSURK    OR    PARTITION. 

Anlo,  (//ja7,  642. 

(Title  of  action.) 

Ill    pursuance   of  a   decree  in   this  cause,  dated 
I  shall  expose  for  sale,  as  the  law  directs,  at  the  in  the 

on  &('.,  the   premises  described   in    said   decree,  as  follows  : 
(describe  the  j)reniises  as  in  the  decree.) 
Dated  18  H.  C,  SherifT  of        county. 

A.  H.,  Attorney  for  Plaintiff. 


No.  209. 

SHERIFK'd    DEED    ON    SALE    UNDER    DECREE    OF    FORECLOSURE. 
Ante,  ^540. 

This  Indenture,  made  this  day  of  between  sheriff 

of  the  county  of  of  the  first  part,  and  of  of  the 

second  part : 

Whereas,  in  and  by  a  certain  decree  made  at  a  special  term  of  the 
supreme  court  held  at  in  the  town  of  before  on  the 

in  a  certain  cause  pending  in  said  court,  wherein  were 

plaintiffs,  and  were  defendants,  it  was,'  among    other  things, 

ordered,  adjudged  and  decreed,  that  the  said  sheriff  should  sell, 
according  to  the  rules  and  practice  of  said  court,  all  and  singular, 
the  premises  described  in  the  decree  in  said  cause,  at  public  auction 
in  the  said  county,  according  to  the  course  and  practice  of  said  court  ;• 

And,  whereas,  the  said  sheriff  having  given  due  notice  of  the  time 
and  place  of  sale,  did,  on  the  day  of  sell  at  public  auction 

at  the  in  aforesaid,  the  premises  described  in  the  said 

decree  ;  and  that  the  same  were  then  and  there  struck  off  to  the  said 
party  of  the  second  part  for  the  sum  of  that  being  the  highest 

sum  bid  therefor,*  and  the  judgment  herein  being  duly  perfected. 

Now,  this  indenture  witnesseth,  that  the  said  sheriff,  in  order  to 
carry  into  effect  the  sale  so  made  by  him,  as  aforesaid,  in  pursuance  of 
the  said  decree,  and  in  conformity  to  the  statute  in  such  case  ;  and, 
also,  in  ronsidcration  of  the  premises  and  of  the  sum  of  money  so  bid, 
as  aforesaid,  the  receipt  whereof  is  hereby  acknowledged,  hath  bar- 
gained, sold  and  conveyed,  and  by  these  presents  doth  hereby  grant, 
assign,  sell  and  convoy  unto  the  said  party  of  the  second  part,  his 
heirs  and  assigns,  forever,  all  (describe  the  premises  as  in  the  decree) 

To  have  and  to  hold,  all  and  singular  the  premises  above  mentioned 
and  described,  and  hereby  conveyed,  or  intended  to  be  unto  the  said 


FORMS  FOR  SHERIFFS.  521 

party  of  the  second  part,  liis  heirs  and  assij^ns,  to  his  and  their  own 
proper  use,  benefit  and  behoof,  forever. 

In  witness  whereof,  the  said   sheriff,  jiarty  of  the  first  part,  has  set 
his  hand  and  seal  the  day  and  year  first  above  written. 

Sealed  and  dehvered  in  II.  C,  (L.  S.) 

the  presence  of  Sherifll'  of        county. 

No.  210. 

siiERiFi-'s  RnronT    of  ham;  on  foreclosure. 
Ante,  ^641. 
(Title  of  action.) 

To  the  Supreme  Court  of  the  State  of  New  York  ; 
In  pursuance  of  the  decree  of  sale  in  this  cause,  made  on  the 
day  of  18       by  which  it  was,  among  other  things,  ordered  and 

decreed  that  the  jnortgaged  premises  hereinafter  described,  be  sold  at 
public  auction  by,  or  under  the  direction  of  the  sherifTof  county, 

in  said  county,  and  that  he  give  public  notice  of  the  time  and  j)lace  of 
such  sale,  according  to  the  course  and  i)ractice  of  this  court ;  and 
that  he  execute  to  the  ])urchaser  on  such  sale  a  good  and  sufficient 
deed  of  the  premises,  and  that  he  pay  to  the  plaintid"  or  his  attorney, 
out  of  the  proceeds  of  such  sale,  the  sum  of  for  his  costs,  and  also 

the  amount  reported  due,  with  interest  thereon,  or  so  much 
thereof  as  the  purchase  money  will  pay ;  and  that  the  sherifT  take  the 
receipts  of  the  plaintitT,  or  his  attorney,  for  the  amounts  so  paid,  and  file 
the  same  with  his  report  of  sale  ;  and  that  he  bring  the  surplus  moneys 
arising  from  the  sale,  if  any,  into  court.  And  that  if  the  amount  of 
moneys  arising  from  said  sale  are  insufficient  to  pay  the  amount  so 
reported  due,  that  the  sherifT  specify  the  amount  of  such  deficiency  in 
his  report  of  sale  :    I,  sherifT  of  said  county,  do  report,  that  I 

advertised  said  premises  to  be  sold  by  me,  at  the  public  house  kept  by 

in  the  town  of  in  said  county,  on  tiie  day  of 

18        at       o'clock  in  the  noon,    as    follows :     by    causing  a 

printed  notice  thereof  to  be  fastened  up  in  three  public  places  in  said 
town,  on  the  day  of  18       and  by  causing  a  copy  of  such 

notice  to  be  printed  once  in  each  week  during  the  six  weeks  imme- 
diately preceding  said  sale,  in  a  public  newspaper  printed  in  said 
county ;  which  notice  contained  a  description  of  the  mortgaged 
premises. 

And  I   further  report  that,  on  the  said  day  of  18       1 

exposed  said  premises  for  sale  at  public  auction,  and  that  they  were 
then  and  there  fairly  struck  olT  to  for  the  sum  of  that  being 

the  highest  sum  bid  therefor. 
67 


52*2  FORMS  FOR    SdFRIFFS. 

Aiul  I  further  report,  that  I  have  executed  and  (icHvered  to  the 
j»urohaser  a  deed  of  the  premises,  that  I  have  retained  for  my  fees 
and  disbursements,  the  sum  of  and   have  paid  to  the  plaintilF's 

atti»rney  the  sum  of  for  his  costs  in  this  cause,  and  have  taken 

his  receipt  therefor,  which  is  hereto  annexed  ;  and  that  I  have  paid  to 
the  plaintiir  the  sum  of  heini;  the  amount  reported   due  liim, 

with  interest  thereon,  and  have  taken  his  recei|)t  therefor,  which  is 
also  hereto  annexed.  (And  that  the  amount  so  l)id  and  paid  was  in- 
suHjiient  to  pay  the  amount  rcjiorled  due,  with  interest  and  costs,  and 
that  the  deficiency  is  the  sum  of  )  (or  that  I  have  paid  the  sur- 

phis  moneys  into  court,  and  have  taken  the  receipt  of  the  clerk  there- 
of, which  is  also  hereto  annexed.)  The  premises  are  described  as 
follows  in  such  decree,  notice  and  deeil : 

All  which  is  respectfully  subniitteil. 

Dated  18  II.  C.  Sheriff  of        county. 

RECEIPTS    ANNEXED    TO    KETOKT. 

(Title  of  action.) 

Received  18       of  sheriff  of 

county,  the  sum  of  in  full  of  my  costs  in  this  action. 

A.  B.,  Attorney  for  Plaintiff. 

(Title  of  action.) 

Received  18       of              sheriff  of 

county,   the    sum    of               being  the    amount    reported    due,   with 

interest.  Attorney  for  Plaintiff. 

(Title  of  action.) 

11.    C,  the  sheriff  of  county,   has  this  day 

j)aid  into  court  the  sum  of  for  suri»lus  moneys  in  this  action. 

Dated  18  R.  H.,  Clerk  of        county. 

'  JSo.  211. 

REPORT  OF  HALE  ON  PARTITION. 

Ante,  ^643. 
(Title  of  action.) 

To  the  Supreme  Court  of  the  State  of  New  York  : 
In  pursuance  of  the  decree  of  sale  made  in  this  cause  on  the 
at  I'y  which   it   was,  among  other  things,  ordered  and  decreed, 

that  the  premises  des<-,ribed  in  said  decree  l)e  sold  by  the  sheriff  of 
county,  according  to  the  rules  and  practice  of  this  court;  and 
that  on  making  the  said  sale,  said  sheriM'  forthwith  make  report 
thereof  to  this  court:  I,  the  said  sheriff,  do  certify  and  rejtort,  that  in 
pursuance  of  said  decree  and  of  the  statutes  and  the  rules  and  i)rac- 
tice  of  the  said  court,  I  gave  due  notice  of  the  time  and  place  of  said 


FORMS  I'OR  SI1I:KIFFS.  523 

sale,  liy  causing  a  notice  thereof  to  be  juiljlislieiJ  once  in  cadi  week 
for  six  weeks  successively,  next  preceding  the  day  of  sale  therein 
mentioned,  in  a  public  newspai)er  printed  in  said  county  ;  which 
notice  contained  a  brief  dcscrijition  of  the  premises;  and  also  by 
fastening  up  in  three  public  places  in  the  town  where  the  said  pre- 
mises are  situated  and  were  advertised  to  be  sold,  six  weeks  next 
l)recediiig  the  day  of  said  sale,  copies  of  the  said  |)rinted  notice  ;  and 
that  at  the  time  and  place  mentioned  in  the  said  notice,  I  exposed  the 
said  premises  for  sale  at  jjubiic  vendue,  and  the  same  were  then  and 
there  struck  off  to  for   the  sum   of  that  being  the  highest 

sum  bid  therefor. 

All  which  is  respeclfully  suljniitted. 

Dated  18  II.  C,  Sherifl'  of        county. 

No.  212. 

SMEUIFF'ri  DEED  ON  SALE  UNDER  DECREE  IN  PARTITION. 
Ante,  ^543. 
The  same  as  No.  209  to  the  first  asterisk,  and  then  insert :  "  that 
after  making  said  sale,  said  sheriff'  make  report  thereof  to  the  said 
court,  and  after  said  judgment  shall  have  been  perfected,  and  the  said 
report  confirmed,  that  said  sheriff^  execute  and  deliver  to  the  purchaser 
or  purchasers,  a  deed  or  deeds  of  the  premises :"  and  after  the  second 
asterisk,  add  :  "  and  the  said  sheriff'  having  made  report  of  his  doings 
in  the  premises  to  the  court,  and  the  same  having  been  duly  confirmed 
by  the  order  thereof."     (Conclude  as  No.  209.) 

No.  213. 

FINAL    RETORT    OF    SALE     LNDER    DECREE    IN    PARTITION. 

Ante,  ()543. 
(Title  of  action.) 

To  the  Supreme  Court  of  the  State  of  New  York  : 

In  pursuance  of  the  decree  of  sale  in  this  cause,  and  of  the  order 
confirming  the  sale,   made  by  this  court  on  the  day  of 

18       I,  the  sheriff'  of  county,  have  executed  to  the  purchaser  a 

deed  of  the  said  premises  so  sold  by  me,  upon  receiving  from  said 
purchaser  the  jmrchase  money  ;  that  I  have  retained  the  sum  of 
out  of  said  purchase  money  for  my  fees  and  disbursements  ; 
and  have  paid  to  the  attorney  of  the  piaintifTfor  his  costs  and  charges^ 
the  sum  of  and  to  the  attorney  for  the  defendant 

the  sum  of  for  his  costs  and  charges;  and  that  I  have  divided 

the  balance  thereof  amongst  the  several  parties  hereto,  according  to 


52-1  FORMS  FOR  Sfli:RIFFS. 

their  respective  interests  therein,  and  have  paid  to  each  their  pro- 
j>ortioniite  share   thereof,  to  wit :   to  the  snm  of  to 

the  sum  of  and  to  the  sum  of  under  and   pursuant 

to  the  decree  in  this  cause,  and  that  1  have  taken  receipts  for  the 
said  several  sums  so  paid,  as  aforesaid,  and  have  annexed  the  same  to 
this  my  re|>ort. 

All  which  is  respectfully  submitted. 

Dated  18  II.  C,  SherilV  of        county. 

(Title  of  action.) 

Received  of  sheriff  of  county,  the  sum 

of  in  full  of  my  costs  and  charges  in  tiiis  action,  as  attorney 

for  plaint ilV.     Dated  IN 

A.  B.,  Attorney  for  riaintifT. 

(Title  of  action.) 

Receired  of  sherifTof  county,  the  sum 

of  in  full  of  my  share  or  portion  of  the  moneys  realized  on  the 

sale  of  the  j)remises  in  this  action. 

Dated  18  CD. 

No.  211. 

UETUnX    TO    AUBEST    0\    CA.    SA. 
Ante,  (;649. 
I  have  arrested  the  within  defendant,  and  have  him  in  my  custody 
in  the  conunon  jail  of  the  county. 

II.  C,  Sheriff  of        county. 

No.  215. 

RETURN    TO    ARREST    WHEKF,    TIIK    DEFENDANT    13    LET    TO    HAIL. 

I  luive  arrested  the  within  defendant,  and  have  let  him  to  the  liberties 
of  the  jail  of  said  county. 

H.  C,  Sherill  of        county. 

No.  210. 

WHERE    TIIK    DEPENDANT    HAS    BEEN     RELEASED    ON     IIAnKAS    CORPUS. 

I  return  that  I  arrested  the  within  defendant,  and  held  and  detained 
him  in  my  custody,  under  the  within  writ  of  execution,  in  the  com- 
mon jail  of  my  county,  until  the  day  of  when  he  was,  in 
due  form  of  law,  removed  fn»m  my  custody  by  writ  of  habeas  (•orj)Us, 
granted  by  Hon.  and  was  then  and  there  discharged  from  such 
arrest.                                                       H.  C,  Sheriff  of        county. 


FORMS  FOR  SUKRIFI^S.  525 


I¥o.  21T. 

RETURN  WIIKUE    ONH    IS    TAKKN    AM>  TIIK    OTHER  CANNOT    HI".   lOl'NI). 

I  have  arrested   the  within  defendant  and  have  him  in  my 

custody  in  the  common  jail  of  the  county  ;  and  the  defendant 
cannot  be  found  in  my  county  after  diH_<,'ent  search. 

II.  C,  Sheriir  of        county. 

No.  2I». 

RETURN    WHERE    THE    DEFENDANT     IS    DISCIl  \Rf:nD    FROM    CUSTODV    UNDER 
THE    INSOLVENT    LAWS. 

I  return,  that  I  arrested  the  within  defendant,  and  held  him  in  my 
custody  until  the  day  of  when  said  defendant  was  duly 

discharged  from  imprisonment  by  the  county  court  of  county, 

as  an  insolvent  debtor. 

H.  C,  Sheriff  of        county. 

No.  210. 

ARREST    AND    ESCAPE     IN    CONSEQUENCE    OF    A    FIRE    IN    THE    JAIL. 

Ante,  ()594. 
I  arrested  the  within  defendant,  under  the  within  writ  of  execution, 
and  detained  him  in  my  custody  in  the  common  jail  of  the  county 
until  the  day  of  when  there  casually  occurred  a  fire  in 

the  said  jail,  whereby  and  by  reason  whereof,  the  said  escaped 

therefrom,  without  my  knowledge  or  assent ;  and  that  I  could  not  pre- 
vent such  escape,  but  the  same  was  without  default  on  my  part ;  and 
that  I  have  not  been  able,  after  diligent  search,  to  retake  the  said 
defendant.  H.  C,  Sheriff  of        county. 

No.  220. 

RETURN    TO    WRIT    OF    POSSESSION. 
Ante,  ^554,  &c. 
I  have  caused  the  within  plaintiff  to  have   possession  of  the  pre- 
mises within  described,  with  the  appurtenances,  as  by  the  said  writ 
I  am  within  commanded. 

No.  221. 

WHERE    THE    PLAINTIFF     NEGLECTS     TO    POINT    OUT    THE    PREMISES. 

Ante,  <j470. 

I  certify  and  return,  that  I  have  been  at  all  times  ready  to  execute 


526  FORMS  FOR  SIT F, RIFFS. 

the  within  writ,  from  the  day  ot"  its  receipt  by  ine,  to  the  last  day  of 
its  rclurn.  to  wit.  A:c.,  but  that  n<»  one,  on  behsiM'of  the  within  plaintilT, 
came  to  show  to  nie  the  premises  within  desrribetl  ;  wherefore  1  could 
not  make  the  said  to  have  possession  of  the  said  premises,  as  by 

the  said  writ  is  required. 


Dated  IS 


H.  C,  Sheriff  of        county. 


No.  222. 

AKFiPAvrr    or     iMrni.-oNF.i)    unnroR    on     a    justice's    judcment    to 

ouTAiv   ni3   niscii.\Rc;K. 

Ante,  ^666. 

(Title  of  action.) 

County  of  ss.     A.  11,  the  defendant  in  this  action,  being  duly 

sworn,  deposeth  and  saith,  that  he  was  committed   to  the  jail  of  the 
said  county  on  the  day  of  under  and  by  virtue  of  an  exe- 

cution issued  by*  a  justice  of  the  peace  of  said  county,  upon  a 

judgment  rendered  before   him  in  favor  of  the  above  named 

plaintiff,   against    this   deponent,  for  the  sum   of  damages  and 

costs,  on  the  day  of  18       and  that  he,  tiiis  deponent,  has 

remained  a  prisoner  on  said  execution  from  the  time  of  such  commit- 
ment, until  the  time  of  making  this  affidavit,  to  wit.  the  day  of 
and  this  deponent  further  saith,  th:it  at  the  time  of  such  com- 
mitment, he  had  and  still  has  a  family  in  the  town  of  in  said 
countv  and  state  of  New  York,  for  which  he  j»rovides  ;  and  that  at 
the  time  of  such  commitment  he  was  not,  nor  has  he  been  since,  nor  is 
he  now,  a  freeholder;  and  furiiier  saith  not. 

Subscribed  and  sworn  before  me 

this  day  of  18  A.  B. 


I¥o.  223. 

WIIERK    Tin:      KXr.(ITIf)N    IS    ISSl'F.n    IIV    THE    COUNTY    n.r.RK. 

Auto,  <)5C.O. 
Instead  of  the  above  (lcscrii)tion  of  the  judgment  and  execution, 
insert  after  the  asterisk:  "the  clerk  of  the  said  county,  upon  a  judg- 
ment rendered  before  a  justice  of  the  of  said  county,  in 
favor  of  the  said  plaintiff,  and  against  tliis  deponent,  on  the 
day  of  for  damages  and  costs,  and  docketed  in  the  office 
of  the  said  clerk."     (Conclude  as  last.) 


FORMS    FOR  Slli:iiIFl'S.  527 

No.  334. 

vviiKUi:    Tin:    trihonkr    has    not  a    family  for  which    hi:   i-rovides. 

Ante,  ^GGG. 
The  same  as  the   foregoing  in  all  respects,  omitting  the  statement 
that  he  has  such  faiiiily. 

No.  335. 

ItOND    FOR    Tin;    Mlir,RTli;3    OF    THK    JAIL. 

Aiito,  <;^331,670. 

(Penal  part  as  No.  12.) 

Whereas   the   above   boundeu  is  now  in   the  custody  of  the 

above  named  sherifl'  of  the  county  of  by  virtue  of  an  order 

of  arrest,  made  by  the  Hon.  a  justice  of  the  supreme  court  of 

this  state,  refpiiring  the  said  to  be   held  to  bail   in  the   sum  of 

at  the  suit  of  (or,  "  by  virtue  of  an  execution  issued  out 

of  the  supreme  court  of  this  state,  at  the  suit  of  against  the  said 

for  damages  and  costs,  tested  on  the  day  of 

and  returnable  sixty  days  after  the  receipt  thereof;'') 

Now,  therefore,  the  condition  of  the  said  bond  is  such  that  if  the 
above   bounden  so  in   custody  of  the   above   named   sheriff,  as 

aforesaid,  shall  remain  a  true  and  faithful  prisoner,  and  shall  not  at 
^  any  time,  or  in  any  manner  escape  or  go  without  the  liberties  estab- 
lished for  the  jail  of  the  county  of  until  discharged  by  due 
course  of  law,  then  this  obligation  to  be  void  ;  otherwise  to  remain  in 
full  force  and  virtue. 

Sealed  and  delivered  in  the 

presence  of  A.  B.     (L.  S.) 

C.  D.     (L.  S.) 
E.  F.     (L.  S.) 
(Sureties  to  justify  and  all  parties  to  acknowledge  as  No.  95,  9G.) 

No.  336. 

ASSIGNMENT    OF    UOND. 
Ante,  ^571. 
Know  all   men  by  these    presents,  that  I,  sheriff  of  county^ 

within  named,  do  assign  and  set  over  to  the  plaintiff  therein  named  at 
his  request,  the  within  bond  or  obligation,  pursuant  to  the  statute  in 
such  case  made  and  provided.     Dated  18 

Signed,  sealed  and  delivered 
in  the  presence  of 


528  FORMS  i-OR  SIIllRIFI'S. 

RETURN    UV    SERVICE    OK    IIADEAS    CORPUd. 
Aiilo,  <>G07. 

(Title  of  mailer  or  j)roceecling.) 

County   of  ss.     I    certify    that  on   the  day    of  at 

I  served  the  writ  of  habeas  corpus  issued  l»y  in  the  above 

enlitleil  matter,  a  copy   of  which   is   hereto  annexed,  upon  the  said 

by  dehvering   the   same  to    him    i)ersonalIy,   at  in   said 

county.  H.  C,  SherilV  of        county. 

:%'o.  2 'is. 

RKTinX    UIIKIIB     THE     I'ARTV    CANNOT    HE    FOLND. 
Ante,  ^007. 
(Title  of  matter  or  proceeding.) 

County   of  ss.     I   certify    that  on  ihe  at  in    said 

county,  I  served   the   writ  of  habeas  corjtus  issued   by  in  the 

above  entitled  matter,  a  copy  of  which  is  hereto  annexed,  ujioii  the 
said  by  leaving  at  the  residence  of  the  said  the  said  writ 

with  the  wife  of  the  said  who  then  had  the  above  named  infant 

in  charge,  in  the  absence  of  the  said  who  could  not  be  found. 

H.  C,  Sherifl'  of        county. 

• 

^o.  229. 

\viii:ki:  tiik  tautv  conceai.h   iiimhki.k. 
Ante,  ^007. 

(Title  of  matter  or  proceeding.) 

County  of  ss.     I    certify  that   on    the  day  of  at 

in   said  county,  I  served  the  writ  of  habeas  corpus  issued  by 
in  the  above  entitled  matter,  a  copy  of  which  is  hereto  annexed, 
upon  the  said  by  affixing  the  said  writ,  in  a  conspicuous  jilace, 

on  the  outside  of  ihe  front  dooi-  of  the  dwelling  house  of  the  said  ' 
the  said  concealing  himself  within    (or  refusing  admittance  to 

me  to  make  personal  service.)  H.  C,  Sherifl'  of        county. 

:\o.  2. JO. 

WHEN    tiik    TAKTV    Hr,KVi:i)    IH     a     SIIKKIKF,    COUONEK,    CONSTAni.E    OR 
MAIIHIIAI,. 

AiiU',  ^OOC. 
Add,  after  describing  the  manner  of  service  :  "  and  also  at  the  same 


FOIIMS  FOR  SIIFIUFFS.  529 

time  J>.'iying  (or  tciuleriiig)   to  said  the  sum  of  for  his  fees 

in  hrin<3nng  up  the  said  prisoner  ;  and  deHvering  (or  tendering)  to 
said  a   bond  in  the  penal    sum  of  conditioned    to  pay  to 

said  the  charges  for  carrying  back   said  prisoner   if  he  should 

be  remanded,  and  that  such  prisoner  will  not  escape  by  the  way, 
either  in  going  to  or  returning  from  the  place  to  which  he  is  to  be 
taken. 


No.231. 

RETURN    TO      HAHI'-AS    CORPUS. 
Ante,  vG09. 

I  do  hereby  return  to  the  justices  of  the  supreme  court  (or  to  the 
Hon.  a  justice  of  the  sui)reme  court ;  or  county  judge  of 

county)  that  before  the  coming  to  me  of  the  within  writ,  the  said 
was  committed  to  my  custody,  and  is  detained  by  virtue  of 
another  writ,  a  copy  of  which  is  hereto  annexed ;  the  original  of 
which  1  also  herewith  produce  ;  nevertheless  I  have  the  body  of  the 
said  before  you  at  the  day  and   place  within  mentioned, 

as  I  am  within  commanded. 

H.  C,  Sheriff  of        county. 


i\o.  232. 

RETURN    WHERE    THE    PRISONER    IS    SICK. 
Ante,  ^Gll. 
I  do  hereby  return  to  the  justices  of  the  supreme  court  (or,  to  the 
Hon.,  (fee.)  that  before  the  coming  to  me  of  the  within  writ,  the  said 
was  commilted   to  my  custody,  and   is  detained  by  virtue  of 
another  writ,  a  copy  of  which  is   hereto  annexed  ;    the  original  of 
which   I  also  herewith  produce  ;  and  that  the  said  now  lies  in 

the  jail  of  said  county,  sick  and  infirm  and  so  remains,  so  that  he 
cannot,  without  danger,  be  brought  before  the  court  now  here,  as  I 
am  within  commanded  ;  therefore  I  cannot  have  his  body  at  as 

I  am  within  commanded. 

H.  C,  Sheriff. 

County  of  ss.  the  sherifT  of  said  county,  who  makes 

the  above  return,  being  duly  sworn,  says,  that  the  said  return  is  in  all 
respects  true,  according  to  his  information  and  belief. 
Sworn  before  me  this 

day  of  18  H.  C. 

6S 


530  FORMS  FOR  siii:riifs. 


WllKRi:    Tin:    rAUTY     IS    .\(»r    in    TIIK    HllF.lllFK'rf    CLSTUDV. 
Ante,  ^008. 
I   hereby   return  to  the  justices  of  the  supreme  court  (or,  to  ll)e 
Hon..  Scr.)  that  lielore  the  ruinini;  to  me  of  the  within  writ,  llie  said 
was  coininitteil  t«)  my  custody,  and  was  detained  by  virtue  of 
another   writ,   a  copy   of  whii-h  is  hereto   annexed  ;  the   original  <^>1 
which  I  also  herewith  produce  ;  l)Ul  that   said  is  not  now,  and 

was  not  at  the  delivery  of  the  within  writ  to  me,  in  my  custody  or 
under  my  power  or  restraint,  the  said  liaving  on  the  night  of 

the  l)roke  the  jail  and   cscajted   thercfn>m,  and    has   not    been 

retaken  ;  (or,  the  term  of  his  sentence  having  expired,  I  did  on 
discharge  said  from  confinement  in  said  jail  ;  or,  that  on  the 

the  said  was  in  due  form  of  law  let  to   bail  by 

county  judge  ;  or,  that    by  virtue  of  a  bench  warrant  issued  by  the 
district  attorney  of  county,  I  did  on  the  day  of 

deliver  the  said  into  the  custody  of  the  sherifTof  county  ;) 

wherefore  I   cannot  have  the  body  of  the  said  at  the  day  and 

place  within  named,  as  I  am  within  commanded. 

n.  C,  Sheriir. 


Ifo.  2:tl. 

PROOF    OF    SERVICE    OF    A    WKIT  OF    CERTIORARI. 
Ante,  vC19. 
(Title  of  matter  or  proceeding.) 

County    of  ss.     I  certify    that   on    the  day  of  I 

served   the  writ  of  certiorari  issued  by  the  Hon.  in  the  above 

mailer  or   proceeding,  upon  the  person  named  therein,  by  delivering 
such  writ  to  him,  personally,  in  in  said  county. 

H.  C,  SherilV  of        county. 


If  o.  aiw. 

RI'.TI'KN    TO    CKKTIOKAKI. 
Allto,  <;G19. 

County  of  hs.     I  certify  and  rctiini  to  the  supreme  court  oi  me 

jitate  of  New  York  (or,  to  Hon.  W.  .1.  15..  justice  of  the  supreme  court, 
6lc.)  as  I  am  within  commanded,  thai  before  the  coming  to  me  of  the 
within  writ  of  certiorari,  to  wit,  c»ii  the  day  of  the  w  iihin 

named  was  committed  to  my  custody,  as  slicriir  of  the  county 


I- oil. MS  FOii  sm:iiiFFS.  531 

of  by  virtue  of  an  execution  issued   upon  a  judgment,  A:c,,  (or, 

liy  virtue  of  a  warrant  of  commitment  of  justice  of  the  i)eace 

of  county),  a  true  coj)y  of  which  is  hereto  annexed,  and  that  he 

is  detained  hy  me  for  no  other  ciuse.     Dated 

II.  C,  Sheriir  of        county. 


OATH     or     JURORS    ON     WIUT    OF    IXCillRY. 
Ante,  (/j36. 
You  and  each  of  you,  do  swear  that  you  will  well  and  truly  hear 
and  determine  the  matter   in   dillerencc   between  plaintiil   and 

defendant,  and  true  inquisition  make,  according  to  the  evidence  : 
so  help  you  (Jod. 


No.  237. 

OATH    TO    WITNESS. 

Ante,  (;G35. 

You  do  swear  that  the  eviticnce  you   shall  give  in  the  matter  in 

difference    between  i)laintifr  and  defendant,   shall  be   the 

truth,  the  whole  truth  and  nothing  but  the  truth  :    so  help  you  God, 


No.  23§. 

IXaUISITION. 
Ante,  ^637. 

County  of  ss.     Inquisition  taken  this  day  of  before 

me,  II.  C,  sheriff  of  county,  at  by  virtue  of  a  writ  of 

inquiry  to  me  directed  and  to  this  inquisition  annexed,  to  inquire  of 
and  concerning  certain  matters  in  said  writ  contained  and  specified, 
bv  the  oaths  of  twelve  irood  and  lawful  men  of  said  county^ 

who  being  summoned  and  sworn,  say  upon  their  oaths,  that  the 
plaintiff  in  the  said  writ  named  hath  sustained  damages  by  reason 
of  the  premises  in  the  writ  mentioned,  over  and  above  his  costs  and 
charges,  to  dollars. 

In  witness  whereof,  we,  as  well  the  said  sheriff,  as  the  said  jurors, 
have  set  our  hands  and  seals  to  this  inquisition,  the  day  and  year 
above  written.  H.  C,  Sherilf.  (L.  8."^ 

Jurors.  J»rn,-s. 

(L.  S.)  (L.  S. 

(L.  S.)  (L.  S 


532  FORMS    FOR    SIlilRIFl-S. 

No.  '2-Hi. 

NoTrt'K  OK  r.xr.cfTifiN  or  a   whit  i»k  ad  uiuu  damnlm. 
Aiilo,  ^039. 
StaTK    or    NkW     YnUK. 

County  of  ss. 

By  virtue  of  a  writ  of  a<l  (juod  damnum,  issuing  out  of  ilie  supreme 
court  of  this  state,  ami  tested  on  the  day  of  and  to  me  directed 

and  delivered,  l»y  wliich  I  nm  commanded,  by  the  oaths  of  twelvo 
good  and  hnvful  men  of  my  county,  to  incjuiie  if  the  persons,  or  any 
of  tliem  owiiini;  the  |)rcmises  hereinafter  ilescribcd,  will  sustain  any 
and  what  injury  by  reason  of  the  taking  of  such  premises  for  the  use 
of  the  people  of  this  state,  (or  of  the  United  Stales.) 

The  said  jiremises  are  described  as  follows  : 

Notice  is  therefore  hereby  given,  that  I  will  proceed  to  execute  the 
said  writ  on  the  day  of  at  in  said  county. 

Dated  18  H.  C,  Sheriil'  of        county. 

]¥o.  2  10. 

OATU    TO    JURORS    ON    WUrr    OF    AD    UUOD    DAMNUM. 
Ante,  ^G39. 
You  do  swear,  that  you  will  diligently  inquire  whether  the  person 
(or  persons)  owning  the  lands  or  tenements  to  be  viewed  by  you,  and 
which  are  mentioned  and  described  in  the  writ  of  ad  quod  damnum, 
issued   by  the  supreme   court  of  this  state,  to   the  sheriir  of 
county,  will  sustain  any  and  whiit  injury   by  reason  of  the  taking  of 
such  premises,  for  the  use  of  the  people  of  this  slate  (or  of  the  United 
States)   and   will   give   a  true  verdict,  according  to  the  best  of  vour 
judgment,  without  lavor  or  partiality :    so  help  you  God. 

No.  311. 

iNaujsrriON    uroN  a    writ  ok  ao  ulod  damnum. 
Ante,  C/;Go'J. 

Statk  of   >i'i;\v   York, 
County  of  ss. 

Incjuisition  taken  this  day  of  18      at,  (Sec,  before 

sheriff  of  county,  under  and   by   virtue  of  the   writ  of  ad  (luod 

damnum,  to  said  shcrilV  directed  and  delivered  and  to  this  iiKpiisition 
amiexed,  l»y   the  oaths  of  (pi.ililied  jurors  of  said   county,  who 

being  duly  summoned  and  sworn  by  the  said  sheriH',  say,  upon  their 
oaths,  that  A.  H.  is  the  «jwner  in  fee  of  liie  lands  and  tenements  firstly 
described  in  said  writ,  as  follows  : 


FORMS  FOR  shi:riffs.  533 

C.  1).  is  llie  owner  in  fee  of  llie  preinises  secondly  described  in 
said   writ,  as  luliows  : 

And  J'i.  V.  holds  the  said  last  mentioned  premises  by  lease  granted 

by  on,  &c.,  lor  the  term  of  years,  at  an  annual  rent  of 

dollars  : 

That  said  A.  B.  will  sustain  injury  and   damages,  to  the  amount  of 

dollars,  by  being  deprived  of  the  said   premises   so  owned    by 

him. 

That   said  C.  D.  will  sustain   damages   to   the  amount   of 
dollars,  by  being  deprived  of  the  said  premises  so  owned  by  bin). 
And  that  Vj.  F.  will  sustain  injury  and  damages  lo  the  atnounl  of 
dollars,  by  being  deprived  of  the  said  premises  so  hel<l  by  liini, 
as  aforesaid. 

And  the  said  jurors,  upon  their  oaths  aforesaid,  do  further  say  that 
the  people  of  the  state  of  New  York  should  pay  for  the  said  several 
parcels  of  lands  and  tenements,  the  said  several  sums  so  assessed  as 
aforesaid,  to  the  said  persons,  to  whom  the  same  are  assessed  as  afore- 
said, respectively. 

In  witness  whereof  we,  the  said  sheriff,  as  well  as  the  said  jurors, 
have  hereto  set  our  hands  and  seals,  the  day  and  year  first  above 
written. 

Jurors.  Juro7-s. 

(L.  S.)  H.  C,  (L.  S.)  (L.  S.) 

Sheriff  of        county. 

No.  212. 

RETURN    OF    EXECUTION    OF    WRIT    OF    AD    QUOD    DAMNUM. 

County  of  ss.     I  certify  and  return,  that  on  the  coming  to 

me  of  the  within  writ  of  ad  quod  damnum,  I  caused  due  notice  of  the 
time  and  place  of  executing  the  same  to  be  given,  by  publishing  a 
notice  thereof  once  in  each  week  for  three  weeks  successively,  imme- 
diately preceding  such  time,  in  a  public  newspaper  printed  in  said 
county  ;  that  I  summoned  twelve  qualified  jurors  of  my  county,  as  I 
am  within  commanded,  to  attend  at  the  time  and  place  designated  in 
such  notice  for  executing  said  writ,  and  then  and  there  administered 
to  each  of  said  jurors,  the  oath  prescribed  by  statute  ;  that  thereupon 
the  said  jurors  viewed  together  all  the  lands  and  tenements  specified 
in  said  writ,  and  after  so  viewing  the  same,  made  inquisition  of  the 
matters  required  in  and  by  the  within  writ  by  them  to  be  made; 
which  inquisition,  under  the  hands  and  seals  of  the  said  jurors,  as  well 
as  under  my  hand  and  seal,  is  hereto  annexed. 

Dated      '       18 

n.  C,  Sheriff  of        county. 


534  F()RM?;    rOR  SIlKllIFF?!. 

.>o.  'Ji:t. 

CERTIKHATi:    <>F    smVKK    oF  A   JIIXJk's    (iKl)KU    UNDER    rilOCEEDIXCS    BUP- 
n.K.MEXTARY    TO    TIIK     EXECUTION. 

Ai.to,  <;Gin. 

County  of  ss.     I  rcrtify  that  on  the  day  of  18 

I  served  ihe  within  order  upon  the  within  named  defendant  in 
in  said  county,  l)y  dehverini,'  to  him   jiorsonally  a  roj>y  thereof,  and  at 
the  same  time  showing  him  the  within  original  order. 

11.  C,  ShcrifT. 

]Vo.  2  11. 

RETIRN    TO    PRECETT    FOR    SUMMONINiJ    A    JURY      IN      A    CA.SE    OF    LUNACY. 

Ante,  <)mO. 
The  execution  of  the  within  i»recept  will  appear  by  the  panel  of 
jurors  hereto  annexed. 

II.  C,  Sheriff. 

No.  2  15. 

PANEL    OF    JURORS     TO    ItE    ANNEXED    TO    PRECEPT. 

Panel    of  jurors   summoned    by    me,    under   and   pursuant    to   the 
annexed  precept. 

II.  C.  Sheriff. 
A.  H.,  farmer,  of  D. 
C.  D.,  mechanic,  of  E.,  &ic. 

No.  216. 

AFFIDAVIT    OF    SUMMONING    JURY    IN    PLANK    ROAD    CASE. 

County  of  ss.     II.  C,  the  sheriff  of  county,  to  whom 

ihe  within  precept  was  delivered  for  service,  dejioseth  and  sailli,  that 
the   folIowin<,'  jurors  therein   named,  to   wit :  were   each   duly 

j)orsonally  served  by  him  to  apj)car  as  such  jurors  at  the  time  and 
place,  and  for  the  purjioses  in  the  said  precept  named,  at  least  four 
days  before  the  day  therein  specified  for  hearing;  .uid  that  the  follow- 
ing jurors,  to  wit,  were  in  like  manner  duly  served  by  him,  by 
leaving  at  their  respective  jilaces  of  residence,  a  written  notice  con- 
taining the  substance  of  the  within  precept;  and  that  the  distance 
actually  an<l  necessarily  trnvelcd  by  me  in  making  the  said  service, 
was             miles. 

Subscribed  and  sworn  before  me 

this  day  of  II.  C. 


FORMS  FOR  SIIHRIFFS.  535 

IVo.  2  IT. 

RETTRX    TO    PRIX'EPT    FOR    HUMMOMM;     A     JIKV    IN'    A    CASE    OF    FOECIBLB 
ENTRY. 

Ante,  ()GCO. 

(The  same  as  Nos.   211,  215.) 

I¥o.  2  IN. 

CERTIFICATE    OF    SERVICE    OF    NOTICE    OF    ISSUINC    THE    I'RECEI'T. 

Ante,  ^GC7. 
I  certify  that  on  the  day  of  I  served  a  notice  of  which 

the  within  is  a  copy,  upon  hy  delivering  the  sannc  to  (him  per- 

sonally ;)   (or,  if  he  cannot  be  found,  "  by  dehvering  the  same  to 
his    wife,   upon    the  premises  therein   mentioned,   the  said  not 

being  found ;")  or,  if  there  is  no  person  on  the  premises  on  whom  the 
same  can  be  served,  "by  affixing  the  same  on  the  outer  door  of  the 
house,  the  said  not  being  found,  and  there  being  no  person  on 

the  within  premises  upon  whom  such  service  could  be  made;")  (or,  if 
there  be  none,  "by  affixing  the  same  upon  the  fence  on  said  premises, 
on  the  public  highway,  being  the  most  public  and  suitable  place  on 
the  premises,  the  said  not  being  found,  and  there  being  no  per- 

son on  the  premises  on  whom  service  could  be  made,  and  there  being 
no  house  thereon.'")  H.  C,  Sheriff. 

Wo.  249. 

CERTIFICATE    OF    SERVICE    OF    A    SUMMONS    IN    SUMMARY    PROCEEDINGS    TO 
OBTAIN    POSSESSION    OF    LANDS. 

Ante,  v>C72. 
I  certifv  that  on  the  day  of  I  served  the  within  sum- 

mons upon  the  within  '  by  delivering  to  him  a  true  copy  thereof, 

and  at  the  same  time  showing  him  the  original  summons,  (or,  if  the 
tenant  is  absent  from  his  last  place  of  abode.  "  by  leaving  a  true 
copy  thereof  with  his  wife,  at  his  last  place  of  abode,  he  being  absent 
therefrom,  and   at  the  same  time  showing    her  the   within  original 

summons.") 

H.  C,  Sheriff. 

IVo.  250. 

RETURN    TO     A     PRECEPT    FOR    A    JURY    IN    SUCU    CASE. 
Ante,  ^674. 
I   have  summoned  the  several  jurors  named  in  the  within  precept, 
to  appear  at  the  time  and  place  within  mentioned;   the  said 


53G  roiiMs  FOR  siii:riffs. 

were   suminonetl    j)er.s(iiiallv,  ami    llie  saul  who   could    not    be 

founl,  were  summoned  l»y  leaving  at  their  respective  residences, 
with  persons  thereat  of  proper  a:;e,  n  notice  that  they  had  been 
nominated  as  such  jurors,  and  ihc  time  and  jihice  at  which  they 
Were  required  to  attend. 


]%o.  251. 

BF.TL'RN    or    SERVICE    OF    oRDr.R     I|-(i\      A     lil'FArl/l'IN(;      JIIIOR     TO    SlIoW 
CAI  SE. 

Ante,  ^078. 
I  certify  tliat  on  the  day  of  I  served  the  within  order 

upon  the  within  named  by  dehvering  to  him  personally  a  co])y 

thereof,  and  at  the  same  time  showing  him  the  within  original  order. 

II.  C,  Sheriir. 


Tiio.  252. 

BETLRN    TO    rnOCESS    OF    DISTRICT  ATTORNEY  FOR  COLLECTION    OF    FINES. 

Ante,  (;G82. 
I  have  made  the  sum  of  directed  to  be  collected  of  the  within 

named  besides  my  fees,  and  have  paid  the  same  to  the  county 

treasurer.     The   within  having  no   goods   or   chattels    in    my 

countv,  whereof  I  could  make  the  amount  of  the  within  fine  imposed 
upon  him,  I  have  committed  him  to  the  jail  of  the  county,  where  he 
now  remains.     I  cannot  find  any  goods  or  chattels  of  the  said 
in  my  county,  whereof  I  can  make  the  amount  of  the  fine  imposed 
upon  him,  or  any   part  thereof;    nor  can  I  fuid  the  said  in  my 

county.  II.  C,  SherilV. 


No.  253. 

BETJ'RN    TO    WARRANT    OF     COUNTV     TREA.SURKR    A(;AI\ST    A    DKLINUUENT 
COLLECTOR. 

AuU',  <,<,(J0],  092. 
I    have  made   the  sum  of  upon  the  within  warrant,  exclusive 

of  my   fees ;    and  the  within   collector   has   no   goods    or    chattels, 
lands  or  tenements  within    my   county,  whereof  I  can   make  the   re- 
mainder of  the  moneys  mentioned  in  the  within  warrant. 
Dated  18 

II.  C,  Sheriff. 


FORMS  FOR  SHERIFFS.  537 


No.  25  1. 

CKKTiriCATi:    01'     8ERVICK    OF    NOTII'ICATION    OF    THE    COMrTKOI.I.KU. 

Allto,  ^703. 

County  of  ss.         I    certiry    that  on  the  <lay  of 

18       I  served  the  within   notification  uj)on  the  within  named 
by  dehvering  to  him  personally  a  copy  thereof. 

II.  C,  SherifT. 


No.  2.W. 

THE    SAME    WHERE    THE    PARTY    13    AnSENT. 
Ante,  (;703. 

County  of  ss.     1  certify  that  on  the  day  of  18 

I    served    the   within  notification    upon  the    within    named  by 

leaving  a  co])y  thereof  with  his  wife,  at  his  usual   place  of  abode,  he 
being  absent  therefrom.  H.  C,  Sherifl. 


No.  250. 

NOTICE    OF    SALE    OF    DISTRESS. 
Ante,  ()()()~15,  71G,  718. 
SheritPs  Sale. 
By  virtue  of  a  distress,  I  shall  expose  for  sale,  as  the  law  directs, 
at  in,  &c.,  the  following  described  property,  to  wit : 

H.  C,  Sherifl; 


No.  25T. 

INVENTORY    AND      AITRAISAL    OF    DISTRESSED    PROPERTY. 
Ante,  ^719. 

Inventory  and  appraisal  of  goods  and  chattels  seized  by  the  sheriff 
of  county,  under  and  by  virtue  of,  in,  &c.,  made  by  the  under- 

signed, three  disinterested  freeholders  of  the  said  town  of  upon 

oath,  to  wit : 

One  bay  horse,  value  S50 

&c.,  &c. 

Dated  A.  B.  ^ 

C.  D.  >  Appraisers. 
E.  F.  ) 

We  certify  that  the  foregoing  is  a  just  appraisal  of  the  property 
69 


53R  FOIIMSFOR  Slli'.lilFFS. 

within   described,  appraised  l)y  us  al  the  instance  of  sherill  ot 

countv,  this  dav  «>f  18 

A.  n. ) 

C.  D.  /  Appraisers. 
E.  F.  ) 


PROOF    OK    POSTING     NoTICK    OF    SALE. 
AnUJ,  ^^718. 
County  of  ss.     A.  13.,  being  duly  sworn,  deposelh  and  sailh, 

that  on  the  dav  of  18       he  posted  in  three  i)ublic  places 

in  the  town  of  in  said  county,  a  notice  of  sale,  of  which  the 

foregoing  (or  annexed)  notice  is  a  true  copy. 
Subscribed  and  sworn  before  me 

this  day  of  18  A.  B. 

C.  D.,  Justice  of  the  Peace  of        county. 


IVo.  259. 

AFFIDAVIT    OF    OFFICER    MAKING    THE    DISTRESS. 
Ante,  ^720. 

County  of  ss.  being  sworn,  saith,  that  he  is  the  sheriH' 

of  said  county  ;  that  the  property  mentioned  in  the  annexed  inventory 
and  aHidavit  was  distrained  by  this  deponent  under  and  by  virtue  of 
that  the  amount  of  the   penalty  was  that  the  property 

sold  for  the  sum  of  that  I  have  paid  the  said  penalty  out  of  the 

proceeds  ;  that  I  have  retained  the  expenses  of  the  apitraisal,  certificate, 
notice,  proof  and  affidavits,  and  of  the  filing  of  the  same,  amounting 
to  and  that  the  suri)lus,  being  the  sum  of  I  have  this  day 

paid  to  the  county  treasurer. 

Subscribed  and  sworn  before  me 
this  day  of 


No.  200. 

APPRAISAL    OF    \Vin:CKF.I)    rKOI'KUTV. 
Ante,  ^723. 

State  of  New  Youk,  / 
County  of  ss.  \ 

We,  the  undersigned,  at  the  instance  of  the  shcrilT  of  county, 


m 


FORMS  FOR   SIIEIIIFFS.  539 

do  appiaisc  liiu  wrecked  property  hereafter  mentioned,  as  follows,  to 
wit: 

One  sloop,  named  lying  at  in  said  rounty,  at     * 

Her  anchor, 

Sails, 

Load  of  damaged  wheat, 

Dated  18 

f*  T)'  I  Appraisers. 
II.  C,  Sheriir. 


No.  261. 

NOTICE    OF    WRECKED    PROI'FCRTY. 
Auto,  ^739. 
To  all  whom  it  may  concern : 

Notice  is  hereby  given,  that  the  undersigned  has  this  day  taken 
into  his  possession   at  in  said  county,  a  sloop  named  of 

one  iron  anchor;  two  sails;  said  sloop  is  loaded  with  wheat 
now  in  a  damaged  condition;  that  said  vessel  and  other  projterty 
are  now  at  the  said  and  that  the  wheat  is  in  a  damaged  con- 

dition, being  wet  and  beginning  to  heat,  &.c. 
Dated  18 

H.  C,  Sheriff'  of        countv. 


No.  262. 

PETITION    FOR    SALE    OF    DAMAGED    PROPERTY. 
Ante,  ^724. 
To  the  lion.  County  Judge  of  county  : 

The  undersigned,  sheriir  of  said  county,  has  this  day  taken  pos- 
session of  a  sloop,  named  iron  anchor,  two  sails,  and  wheat  in 
the  hold,  in  a  damaged  condition  ;  that  he  has  caused  the  same  to  be 
appraised  by  two  disinterested  persons,  a  copy  of  which 
appraisal  is  hereto  annexed,  and  that  he  has  given  the  notice  of  such 
wrecked  property,  required  by  law  in  such  cases  ;  that  said  wheat 
is  in  a  damaged  state,  and  unless  it  is  worked  up  soon  will  spoil ;  he 
therefore,  prays  that  the  same  may  be  sold  as  in  such  case  is 
provided. 

H.  C,  Sheriff  of        county. 

County  of  ss.     11.   C,  sheriff  of  said  county,   being  sworn 


540  KORM^!   FOR  SFIi;UIFFS. 

says,  that   the  foregoing  i»olition  is  true  to  the  best  of  his  knowledge 
aiul  belief 

JSubscribcd  and  sworn  before  me 
this  day  of  18 

A.  H..  County  Judue  of        county. 


IVo.  303. 

NOTICK    OF    ELECTION    TO    UK     IMIII.ISII  r.D    AND    SERVED. 
Ante,  \)7-14. 

Election  Notice. 

Sheriff's  Office,  ) 
County  of  ) 

Notice  is  hereby  given,  pursuant  to  the  statutes  of  this  state,  and 
of  the  annexed  notice  from  the  secretary  of  state  (or,  order  of  the 
board  of  county  canvassers,  or,  proclamation  of  the  ijovernor)  that 
the  general  election  (or,  a  special  election)  will  be  held  in  this  county 
on  the  Tuesday  succeeding  the  first  Monday  of  November  next ;  at 
which  election,  the  olficers  named  in  the  annexed  notice  (or  order,  or 
proclamation)  will  be  elected. 


H.  C,  Sheriff. 


(Copy  notice,  order  or  proclamation.) 


No.  26 1. 

PROOF    OK    .'JERVICE    OF     A     CITATION      TO      ATTEND      THE    I'RollATE    OF 
A    WILL. 

County  of  ss.     H.  C,  being  sworn,  says,  that  on   the 

day    of  18       he    served    the  within    citation    upon    the    within 

named  by   (delivering  to  him  a  cojjy   thereof,  and  at  the  same 

lime  showing  him  the  within  original  citation,  at  in  said  county ;) 

(or,  if  he  cannot  be   found,  say,  "  by  leaving  a  copy   thereof  on  the 

day  of  18       at  the  place  of  residence  of  the  said 

in   the  town  of  with  tlie  mother  of  said  with  the 

request  to  deliver  the  same  to  said  as  soon   as   might  be  ;  and 

that  this  deponent  has  since   learned    that   said  tlid  on  or  about 

return   to  his  said   residence,  where  the  said  coj)y  was  left  for 
him,  as  aforesaitl." 

Suljscribed  and  sworn  before  me 

this  day  of  H.  C. 

A.  B.,  Ju-itice  of  the  Peace. 


FORMS   Foil  SlllClilFKS.  541 


No.  ao.'i. 


PROOF    OF    SERVICE    OF    CITATION      ON      KXECUTOR    ftR    ADMINISTRATOR    TO 

ANSWKR    CIIAR(;E.S. 

Ante,  (;752. 

County  of  ss.     I  certify  that  on  llic  day  of  Is 

I  served  the  within  citation  on  the  within  named  by  dehvering 

to  him  i)ersonally  a  copy  thereof,  and  at  the  same  time  showing  him 
the  within  original  citation  (or  if  he  shall  have  aljsconded,  say,  "  by 
leaving  a  copy  thereof  at  his  place  of  residence,  with  his  wife, 

he  having  absconded  from  the  county.'') 

II.  C,  SherifT. 


No.  266. 

PROOF      OF      SERVICE     OF      A      CITATION      UPON      A     GUARDIAN      TO    ANSWER 

CHARGES. 

Ante,  v;753. 

If  he  can  be  found,  the  proof  of  service  is  the  same  as  the  last. 

If  he  has  absconded  or  concealed  himself  so  that  he  cannot  be  per- 
sonally served,  say,  "by  leaving  a  copy  thereof  with  at  his  last 
place  of  residence,  he  having  absconded  from  the  county  (or  con- 
cealed himself)  so  that  personal  service  could  not  be  made  upon  him." 


No.  267. 

NOTICE    TO     SHERIFF    TO    RETURN    PROCESS. 

Ante,  ^780. 
(Title  of  action.) 

To  Sheriff  of  county : 

Sir :  You  are  hereby  notified  to  return  the  summons  and  complaint 
(judge's  order,  Sic,  or  execution,)  delivered  to  you  for  service  in  this 
cause,  within  ten  days  after  the  service  of  this  notice,  or  show  cause 
at  a  special  term  of  this  court  to  be  held   at  the  court  house  in  the 
on  the  day  of  at  the  opening  of  the  court,  why  an 

attachment  should  not   issue  against  you   for  neglect  thereof,  with 
costs  of  such  motion.     Dated 

Yours.  &c., 

A.  B.,  Attorney  for  Plaintiff. 


512  FdRMS  VOW  siiiciiiFrs. 


AKnnwiT  i>r  Dr.i.ivr.iiv    or    i:\Kt  tTi(»N  to  tiii:  .<iir.itii  r. 

(Title  of  action.) 

County    of  ss.     A.    \\.,   biMJig   sworn,   says,    that    he    is    the 

attorney  for  the  plaintilV  in  this  action;  that  jiKlt,Mnent  was  perfected 
ami  the  roll  thereof  filed  in  the  clerk's  oHice   of  county,  uii  the 

day   of  18       for  dollars  ai.d  cents,  darna^'cs 

and  costs,  and  a  transcript  thereof  was  filed  and  the  judgment  docketed 
in  till*  clerk's  ofiice  of  county,  on  the  day  of  as  this 

deponent  is  inforineil  and  helieves  ;  that  execution  in  due  form  of 
law  was  duly  issued  thereon  to  the  sherill"  of  said  last  mentioned 
county,  by  which  said  sherilV  was  commanded  to  make  the  said  sum 
of  with  interest  and  his  fees,  and  to  return   such  Execution  to 

Ihe  office  of  the  clerk  of  county,  within  sixty  days  after  the 

receipt  thereof  by  him,  the  said  sheriff;  and  that  the  same  was 
received  by   said   shcrilV  for  execution  on  the  day  of  as 

this  deponent  is  informed  and  believes.  That  this  deponent  has  made 
inquiries  at  the  office  of  the  clerk  of  county  for  said  execution, 

and  that  he  has  learned  that  although  the  time  for  returning  said 
execution  has  expired,  said  execution  has  not  been  returned  ;  and  that 
the  said  judgment,  nor  any  part  thereof,  has  not  been  j)aid  to  the 
plaintiff;  but  that  the  whole  remains  due  and  unj)aid  ;  and  that  the 
said  sheriff  is  in  default  in  not  returning  the  said  execution,  and  in  not 
paying  over  the  said  moneys. 

Sworn  before  me 

this  (lav  of  18 


.\o.  2<»9. 

I'ROOF    OF    .SKRVICK     OF      NOTICK    TO    UKTIIIX     I'ROCESS. 

(Title  of  action.) 

County  of  ss.      A.    15. ,  being  sworn,  deposiMli  and   s.iith,  that 

on    the  d.iy   of  is       he    served   a    notice.   <d'   which  the 

annexed  is  a  copy,  on  the  within  named  sheiill'  of  county, 

by  delivering  the  same  to  him  j)ersonally  (or  if  he  cannot  be  fouml, 
"  by  leaving  the  same  in  his  office  during  the  hours  the  same  is  by 
law  recjuired  to  be  kept  o|)en,  no  person  being  present  therein.") 

(Or.  I  adnjil  service  of  a  noiice  of  which  the  within  is  a  copy,  this 
day  of  18 

II.  C,  Sheriff. 


FORMS  I' Oil   SIli:iUFI'S.  543 


l¥o.  270. 


I'nOOF    OF    SF.nVICT,    OF    NOTICr,    TO    Ui;i'l'KV     A\     KXKCUTICV     ANr»    OF    HF.R- 
VICK    OF    AFFIliAVIT    <>l'    I)i:i,I\  F.Il  Y    TIIKKKOF,   ON    TIIK    HIIKUMF. 

(Title  of  action.) 

County   of  ss.     A.   13.,  being   sworn,  says,  tlirit  on  the 

day  of  lie  served  the  foregoing  notice  and  aflidavit  on  the  above 

named  sherifT  of  county,  by  delivering  copies  thereof  to 

him  personally  (or  if  he  cannot  be  found,  "by  leaving  copies  thereof 
with  C.  D.,  a  cleric  in  the  oflice  of  said  sherifT,  during  the   hours  in 
which  said  oftice  is   retjuired   by  law  to  be  kc\)\.  open,  the  said 
being  then  absent  therefrom.'") 


I¥o.  271. 

PROOF  THAT  Tin:  execution  has  not  been  retlrned. 

(Title  of  action.) 

County  of  ss.     A.  B.,  being  sworn,  says,  that  on  the 

day  of  18       he  made  diligent  search  of  the  files  of  the  oflice  of 

the  clerk  of  the  county  of  in  the  place  where   executions  are 

kept  therein,  and  that  the  execution  in  this  action,  directed  and 
delivered  to  the  sheriff  of  county  on  the  day  of 

cannot  be  found  on  said  files  on  such  search ;  and  this  deponent 
verily  believes  that  such  execution  has  not  been  returned  to  said 
otiice. 

Subscribed  and  sworn  before  me 

this  day  of  18  A.  B. 


No.  272. 

THE    SAME    IN     ANOTHER    FORM. 

(Title  of  action.) 

County  of  ss.     A.  B.,  being  duly  sworn,  deposeth  and  saith. 

that  on  the  day  of  he,  this  deponent,  made  inquiry  at  the 

oflice  of  the  clerk  of  county,  for  the  execution   issued  in  said 

action  to  the   sheriff  of  county,  on  the  day  of  18 

and  returnable  to  said  ofi'ire  ;  and  that  this  deponent  was  informed  by 
said  clerk  (or  by  a  clerk  therein)  after  search,  that  such  execution 
had  not  been  returned  to  said  office;  and  this  deponent  verily  believes 
that  such  execution  has  not  been  returned  to  said  office. 

Subscribed,  6cc. 


544  FORMS  i-oii  siii:iiii-i\s. 

No.  117:i. 

cinnra   k.>ii   atta<ii>iknt. 

Al  a  special  term  (A'  the  supreme  cniiit,  held  for  the 
state  of  New  York,  at  the  in    the  on   the 

dav  of  18 


11  oil.  .lustice. 


Present, 

(Title  of  action.) 

On  reading  and  filing  the  afTuiavit  of  show- 

ing the  delivery  of  an  execution  in   this  cause  to  the   sheritr  of 

county  ;  notice  to  return  the  same,  and  of  this  motion,  and  due 
proof  of  service  of  the  same  on  such  shcrilF,  together  with  an  alTidavit 
showing  that  such  execution  had  not  been  returned,  according  to  the 
command  thereof;  and  on  motion  of  Mr.  of  counsel  for  the 

plaintilT,  no  one  appearing  to  oppose,  it  is  ordered  that  an  attachment 
issue  against  the  said  sheriff  of  county,  returnable  before 

this  court  on  the  day  of  at  the  in   the  at  the 

opening  of  the  court;    also,  that  said   sheriff  pay  to  said  plaintiff's 
attorney  ten  dollars,  costs  of  this  motion. 

If  the  attachment  is  against  the  present  sheriff,  it  should  be  directed 
to  the  coroners  of  the  county  ;  or  to  one  of  them  by  name.  If  the 
attachment  is  against  the  late  sheriff,  it  is  to  be  directed  to  the  pre- 
sent sheriff  and  not  to  the  coroner.  If  the  attachment  is  against  the 
coroner  for  not  returning  the  attachment,  it  is  directed  to  elisors,  to 
be  a])pointed  by  the  court.  If  against  either  the  sheriff  or  coroner, 
for  not  returning  the  first  attachment,  the  indorsement  and  allowance 
is  as  follows  : 

(Title  of  action.) 

Issued  against  the  said  for  not   returning  a 

certain   attachment  directeil   and  delivered  to  him  against  for 

contempt ;   and   the   said  is  not  to  be  discharged  on  bail   or   in 

any  <»ther  manner,  but  by  order  of  the  court. 
bated  18 

W.  J.  B.,  Justice  of  Su]ircme  Court 

I¥o.  2T  I. 

attaciimf:\t  for  not   ukturmn(;    an   kxkcl'tion. 
AnU-,  <)7W). 

The  People  of  the  State  of  New  York,  to  the  coroners  of  the  county 
of 

We  commanil   you   that    you   attach  sheriff  of  our 


FORMS  FOR  SIIFRIFFS.  545 

(L.  S.)     county  of  so  that  you  li;ive  liiin  before  our  justices  of 

our  supreme   court   of  judicature,  at  the  on  the, 

&c.,  to  answer  for  certain  trespasses  and  contempts  done  and  com- 
mitted in  our  court  before  our  justices  thereof;  and  have  you  then 
there  this  writ. 

Witness,  Hon.  one  of  the  justices  of  tlie  supreme  court,  the 

day  of  at,  &c.  1^-  H.,  Clerk. 

A.  B.,  Attorney. 
(Endorsed  on  the  writ.) 

Supreme  Court. 

The  people  of  the  state  of  New  York,  ex  rei.  C.  D., 

against 

II.  C,  Sherifr  of  county. 

A.  B.,  Attorney. 

Attachment  returnable  the  day  of  at,  &c. 

Issued  by  special  order  of  the  court,  for  not  returning  an  execution 
in  favor  of  C.  D.  against  for  dollars  and  costs,  issued  and 

directed   and   delivered  to    the   said  as    the   sheriff  of 

county. 

Let  the  said  be  heM  to  bail  in  the  sum  of  dollars. 

W.  J.  B.,  Justice  of  the  Supreme  Court. 


No.  275. 

BOND    TAKEN    ON    ARREST    ON    ATTACHMENT. 
Ante,  ^790. 
(Penal  part  as   No.   12.     The  penalty,  the  amount  mentioned  in 
the  order  or  allowance  endorsed  on  the  writ.) 

The  condition  of  the  above  obligation  is  such,  that  if  the  above 
bounden  (late)  sheriff  of  the  county  of  shall  appear  before 

the  justices  of  the  supreme  court  of  this  state,  at  a  special  term  thereof 
to  be  held  at  the  court  house  in  in  the  county  of  on  the 

day  of  and  abide  the  order  and  judgment  of  the  court 

on  the  attachment   issued  against  the  said  for  not  returning  an 

execution  in  favor  of  against  then  this  obligation  to  be 

void,  otherwise  to  remain  in  full  force. 
Sealed  and  delivered 

in  the  presence  of  (L.  S.) 

(L.  S.) 
(L.  S.) 

(To  be  signed  and  affidavit  of  justification  and  certificate  of  ac- 
knowledgment as  Nos.  95,  96.) 
70 


540  roiiMs  FOR  siii:iurrs. 


^o.  J70. 

RKTl'RN    To    TIIK    ATTACH VKNT. 

I  have   arrested  tlio   wiiljin  di Teiulaiit,  and  have  taken  from  him  a 
bond   in   the   penally   marked   on   the  writ,  with  as   tiis  surety, 

and  return  the  same  herewith.     Dated  IS 


11.  C,  Sheriir. 


If  o.  277. 


IXTERROGATORIES     TO    THE    SHERIFF. 

(Title  of  action.) 

Interrogatories  to  be  administered  to  the  sherilT  of  the  county  of 

touching  a  comi)laint  against  him  in  not  returning  a  certain 

execution  against  property,  issued  out  of  the  said  court  in  favor  of 

tt  plaintiir  and  against  defendant,   (or  a  certain  summons 

and  complaint,  judge's  order,  &c.) 

First  interrogatory:    Did  you  or  not,  in  person  or  by  deputy,  or 

otherwise,  at  any  and  at  what  time,  receive  for  service  a  certain 

execution  to  you  directed  as  sheriir  of  the  county  of  wherein 

was  plaintiff,  and  defendant,  tested  on  the  day  of 

and  returnable  within  sixty  days  from  its  receipt  by  you? 

Second  interrogatory :  Did  you  at  anv  and  what  time,  receive  any 

and  what  notice  to  return  such  execution  ?  and  state  the  purport  of 

that  notice. 

Third  interrogatory :  Did  you  execute  or  serve  the  said  writ ;  if 
yea,  when  and  where,  particularly  ? 

Fourth  interrogatory:  Have  you  or  have  you  not  returned  that 
execution,  and  if  yea,  when  and  where,  in  particular;  and  if  nay 
why  have  you  not  returned  the  same  ? 

A.  B.,  Attorney  for  Tlaiutifl'. 

No.  27§. 

ANSWER    OF    THE    SHERIFF    TO    INTERROGATORIES. 

(Title  of  action.) 

The  answer  of  sherifT  of  to  the   interrogatories  hereto 

annexed,  filed  in  this  action,  uj)on  the  return  of  the  attachment  herein  : 

To  the  first  interrogatory,  he  answereth  and  saith,  that  lie  received, 
by  his  deputy,  aa  he  is  informed  and  believes,  the  execution  men- 
tioned in  the  finst  interrogatory  hereto  annexed,  on  or  about  the,  <Scc. 


FORMS  FOR  SIIIORIFFS.  547 

To  the  second  interrogatory,  ho  answereth  and  sailh,  that  on  or 
about  the  day  of  lie  was  served  with  a  notice  to  return 

the  said  execution,  within  ten  days  thereafter,  or  show  cause  why  an 
attachment  should  not  issue  against  him  ;  and  pay  the  costs  of  the 
motion. 

To  the  third  interrogatory,  he  answereth  that  he  has  not. 

To  the  fourth  interrogatory,  lie  says  that  the  said  execution  was 
delivered  to  one  C.  D.,  a  deputy  of  this  deponent,  as  he  is  informed 
and  believes,  and  not  to  this  deponent;  that  he  never  had  information 
of  said  execution  until  on  or  about  the  day  of  ;  that  said 

deputy,  at  the  time  he  received  said  execution,  was  instructed  and 
directed  by  A.  B.,  the  attorney  for  the  plainlill"  in  this  action,  as  this 
deponent  is  informed  and  believes  true,  of  the  lime  and  place  and 
manner  of  executing  said  writ;  that  said  deputy  was  authorized  and 
instructed  to  depart  from  the  regular  course  of  jjroceeding  upon  the 
execution  of  such  process,  and  that  he  did  so  depart  from  the  regular 
course  of  proceeding  on  such  execution,  and  thereby  this  deponent 
became  and  was  released  from  all  responsibility  of  and  concerning 
the  execution  of  the  said  process  ;  and  the  said  deputy  thereby  became 
and  was  the  agent  of  said  plaintiff  in  tlie  execution  of  such  process  ; 
that  before  this  deponent  was  notified  to  return  said  execution,  said 
deputy  has  absconded  and  has  carried  off  said  execution,  and  that  the 
same  cannot  be  found,  so  that  return  thereto  may  be  made  by  this 
deponent,  if  it  be  proper  that  this  deponent  should,  under  the  circum- 
stances, make  return  to  such  process. 

Subscribed  and  sworn  before  me 

this  day  of  H.  C. 


No.  2T9. 

CERTIFIC/VTE    TUAT     DEFENDANT    IS    IMPRISONED. 

(Title  of  action.) 

I  do  certify  that  the  above  named  defendant  is  a 
prisoner  confined  within  the  jail  of  the  county  of  in  execution, 

at  the  suit  of  the  above  named  plaintiH',  by  virtue  of  an  execution 
against  the  body,  issuing  out  of  this  court,  (or  if  out  of  any  other 
court,  specify  such  court.)  and  lodged  in  my  oiHce  against  him  ; 
whereby  I  am  directed  to  levy  and  receive  the  sum  of  dollars 

and  cents,  with  interest  and  my  fees. 

Dated,  &c. 

H. C,  Sheriff  of        county. 


548  FORMS  FOR  SIIKRIFFS. 


\o.  '2SO. 

CF.RTIFIlATr.    THAT    DKrr.VnANT    Irf      IN     llHToDY,    AND     THAT    NO    KXECU- 
TION     HAD    HKKX     lUM.I  V  KUI.K. 

(Title  of  action.) 

I  coilirv  that  the  above  defendant  is  in  my  cus- 
tody in  the  jail  of  my  county,  on  surrender  made  by  his  bail  in  this 
action,  (or  on   a  voluntary  surrender)  on  the  day  of  and 

after  the  recovery  of  the  jud<;ment  in  said  action  ;  and  that  there 
has  not  been  delivered  to  mc  any  writ  of  execution  in  said  action, 
within  three  months  from  the  time  of  such  surrender. 

Dated  II.  C,  tSheriir  of        county. 


No.  2§1. 

AFFIDAVIT    OF    8UERIFF     WHEN     LIAllLE     A3      nAIL,    TO      BE     EXONERATED. 
"  Ante,  ^340. 

(Title  of  action.) 

County  of  ss.     II.  C,  being  sworn,  sjjiys,  that  he  is  the  sheriff 

of  said  county  ;  that  by  reason  of  the  refusal  or  neglect  of  the  bail 
taken  on  the  arrest  of  the  defendant  in  this  cause,  to  justify  when 
thereto  required  by  the  plaintilf's  attorney,  it  was  and  is  claimed  by 
the  plaintiff  herein,  that  this  deponent  became  and  is  liable  to  the  said 
plaintiff  as  bail  in  said  action  ;  (state  what  has  been  done  and  present 
state  of  action)  and  this  dejioMent  further  says,  that  before,  &.C.,  said 
defendant  was  indicted  and  tried  and  convicted  at  a  court  of,  &c.,  in, 
etc.,  of  felony,  and  sentenced  to  the  state  prison,  and  that  said 
defendant  has  been  committed  to  and  now  is  confined  in  the  state 
prison  at  under  and  j)ursuant  to  said  conviction  and  sentence, 

(or,  tliat  before,  &c.,  said  defendant  died,  A:c.) 


<  ERTIFICATE     OF    .'SERVICE    OF    A    SUIU'OENA. 
Auto,  ^182. 

County    of  ss.     1    certify    that   on    the  day   of  1 

served  the  within  subpcL-na  upon  the  within  named  by  deliver- 

ing to  him  a  true  copy  thereof,  (or  a  ticket  containing  the  substance 
thereof,)  and  at  the  same  time  showing  him   the  within   original  sub- 


FORMS  FOR  SHERIFFS.  549 

n(L'na,  and  l>y   paying  ('jr  tendering)   lo  liini  the  sum  of  lor  his 

lees  in  going  to,  and  returning  from  llic  j-lace  designated  in  said  sul>- 
tiinna,  and  f<»r  one  day's  attendance  tlien-at.     Diited 

H.  C,  Sheriff  of        county. 

(If  the  service  is  in  a  criminal  case,  omit  statement  relative  to  the 
payment  of  fees.) 

IVo.  3§3. 

RETURN      TO      AN     ORDER      FOR      THE    HEMVERY    OF     PERSONAL     PROPERTY 
WHERE    NONE    OF    THE    GOODS    ARE     FOUND. 

Ante,  $G4G, 
I  have  made  diligent  search,  but  no  part  of  the  within  described 
goods  could  be  found  in   my  county,  so  that  I  could   make  delirery 
thereof,  as  I  am  within  commanded. 

II.  C,  Sherifl". 


No.  2§  I. 

RESIGNATION     OF    THE    SHERIFF. 

Ante,  <)9. 

To  His  Excellency, 

Governor  of  the  State  of  New  York : 
Sir :  I  hereby  resign  the  office  of  sheriflT  of  the  county  of  to 

take  cflect  ui)on  the  appointment  of  a  person  to  execute  the  duties  of 
the  office.  A.  B.,  Sheriff  of        county. 


IVo.  2S5. 

REPRESENTATION      THAT     THE     SHEUIIT    Iri     IN     CUSTODY     FOR     THE     NON- 
PAYMENT   OF    MONEY. 

Ante,  ^10. 

To  the  Governor  of  the  State  of  New  York  : 

State  of  New  York.  ) 
County  of  ss.  ) 

In  pursuance  of  the  statutes  of  this  state,  I,  the  undersigned,  one  of 
the  coroners  of  said  county,  do  represent  that  II.  C,  sheriff  of  said 
county,  has  been  committed  to  my  custody  as  such  coroner,  by  virtue 
of  an  execution  (or  attachment)  for  the  non-payment  of  money 
received  by  him,  in  virtue  of  his  office  of  sherifl',  and  that  he  has 
remained  so  committed  for  the  space  of  thirty  days,  successively. 

Dated  A.  B.,  Coroner  of        county. 


550  FORMS    1-uR    iSllb:Rll'l"S. 


DESIGNATION     OK      A    lOllONKK     Ti»      KXKCITK     TIIK      OTKICE      OF     SHURIFF^ 

Anto,  ^907,  &.C. 

Statf.  of   Nk.w  York, 
Coimly  of  S3. 

A  viioancy  having  occurred  in  the  oflice  of  sherifT  of  county, 

and  there  being  no  under  shcrifl'  of  said  county  in  olVice,  (or  "  the 
ofl'u'e  of  under  sherilF  of  the  said  county  having  become  vacant ;") 
(or  •'  the  under  sherifl'  of  said  county  having  become  incapable  of 
executing  the  said  oirice/')  and  there  being  more  than  one  coroner  of 
said  county  in  ollice,  I,  the  county  judge  of  said  county,  in  pursuance 
of  the  statutes  in  such  case,  hereby  designate  one  of  the  coro- 

ners of  said  county,  to  execute  the  ollice  of  sherill'  of  said  rounty, 
until  a  sheriir  thereof  shall  be  elected  or  appointed  and  (lualified. 

Given  under  my  hand  and  seal,  this  day  of,  &c. 

P.  S.  R.,  County  Judge.         (L.  S.) 


Wo.  2§7. 

appointment  of  a  person  to  execute  the  office  of  sheriff. 

Ante,  ^9G7,  &c. 

State  ok   New  York, 
County  of  ss. 

Vacancies  in  the  ollice  of  sherilV  and  under  sheriff  of  said  county 
having  occurred,  and  A.  B.,  the  coroner  solely  in  office,  (or  "  all  the 
coroners  of  said  county  in  office  having  successively")  neglected  or 
refused  to  execute,  within  the  time  recjuired,  the  bond  recjuired  in 
such  case,  I,  the  county  judge  of  said  county,  do  hereby  appoint  C.  D., 
of  to  execute  the  otlice  of  sheriff  of  the  same  county,  until  a 

sheriff  shall  be  duly  elected,  or  appointed  and  (lualified. 

Given  under  my  hand  and  seal,  &ic. 

P.  S.  R.,  County  Judge  of        county.     (L.  S.) 


No.  2S8. 

NOTICE    OK    SAin    DESIGNATION. 

To  A.  B.  : 

Sir :   Yuu  have  been  this  day  designated   by  the  county  judge  of 
county,  to  execute  the  office  of  sheriff  of  said  county,  until  a 
sheriff  thereof  shall  be  elected,  or  appointed  and  (luaiificd. 

D^led  1^-  •^•»  County  Clerk. 


FORMS   FOR  SHERIFFS.  051 


IVo.  2«1>. 


NOTICE    or    SEI/UKK    OF    LKiUOU. 
Ante,  ^1139. 

To 

Sir:  Take  notice,  that  by  virtue  of  a  warrant  issued  by  a 

justice  of  the  ])e:ice  residing  in  in  county,  I  have  this  day 

seized   one  hundred  barrels  of  beer,  contained  in  oaken  casks,  bound 
with    iron    hoops,   and    marked  and    without    other    j)articular 

marks  ;  and  that  my  residence  is  in  said 

Dated  A.  B.,  Sherilf. 


No.  200. 

RETURN    TO    THE    WARRANT. 

I  certify  and  return,  that  by  virtue  of  the  within  warrant,  I  tliis  day 
seized  one  hundred  barrels  of  beer,  contained  in  oaken  casks,  bound 
with   iron   hoops,   marked  and  without  other  particular  marks, 

and  that  I  have  stored  the  same  in,  at,  &c. ;  that  immediately  upon 
making  such  seizure,  I  caused  notice  thereof  to  be  served  on 
the  supposed  owner  of  said  beer,  by  delivering  the  same  to  his  agent, 
containing  a  description  of  the  liquors  seized,  and  of  the  casks  in 
which  they  were  contained,  the  name  of  the  magistrate  issuing  the 
warrant,  and  my  name  and  place  of  residence  ;  (or  if  the  service  was 
not  personal,  describe  the  manner  thereof)  and  that  I  also  forthwith 
conspicuously  posted  in  three  public  places  within  said  county,  copies 
of  said  notice. 

A.  B.,  Sheriff  of        county. 


I¥o.  291. 

RETURN      TO    WARRANT    OF     DESTRUCTION    OF    LiaL'OR. 
Ante,  ^1140. 

County  of  ss.     We,  A.   B.,  the  officer  to  whom  the   within 

warrant  was  issued,  and  C.  D ,  complainant  in  the  within  proceedings 
being  severally  duly  sworn,  each  for  himself,  deposeth  and  saith,  that 
in  pursuance  of  the  within  warrant,  the  said  A.  B.  proceeded  to 
execute  the  same  at  the  in   said   county,  on  the  day  of 

that  said  warrant  was  executed  by  knocking  in  the  heads  of 
the  said  barrels  of  beer,  and  causing  the  liquors  to  run  out  into  the 
street,  (or  as  the  fact  may  be.) 


552  i-oRMS  Foii  shi:rii'i-s. 


PROOF     OK      Sr.RVKK      UK      A    .•^^M^t.•^H      IfoN      A     WITNKSS      IN    St'CH    CASE. 

Ante,  <;1141. 

I   certify   thai   on  the  day  of  18       I  served  the  within 

suiiinions   upon    the  within   named  ii^  in  saiil   county,  hy 

delivering  to  him  personally  a  copy  thereof,  and  at  the  same  lime 
showing  him  the  within  original  summons. 


If  o.  303. 

OATII    TO     ACCOUNTS     RENDERKD    TO    HOARD    OF    SLTERVISORS. 
Ante,  ^1130. 

Countv  of  ss,     A.  B.,  being  duly  sworn,  says,  that  the  items 

of  the  annexed  account  are  correct,  and  that  the  disbursements  and 
services  charged  therein,  have  been  in  fact  made  and  rendered,  and 
that  no  part  thereof  has  been  paid  or  satisfied. 

Subscribed  and  sworn  before  me 

this  day  of  18  A.  B. 


I¥o.  391. 

FORM    OK    sheriff's    RECilSTER. 

A.  B.  1    G.  H.,  Att'y,  New  York. 

1855  against         >      Sum.  <fc   comp't  and  order  to   hold 

July  1  C.  D.  6c  E.  F.  )  to  bail. granted  by  Judge  K.  in  81000, 

ret'ble   July  10  ;  also,  afli't  on   which 
order  granted  and  coj)ies. 

"  2  Served  sum.  «k  comp't  on  C.  D.  in  \V.  ;    also  arrested 

him  under  order;  showed  him  order  and  del'd  him  copies 
of  afli't  and  order ;  committed  him  to  jail  for  want 
of  bail. 

"  a  Deft.,  C.  1).,  gave  undertaking  in  iSIOOO  with  L.  M.  *fc 

N.  O.,  merchants  of  U.,  who  justified  and  acknowledged 
before  P.  Q.,  justice  of  the  peace.  Deft.  pd.  fees  of  bond, 
3s.,  and  pd.  justice's  fees;  disc.'d  him  from  arrest;  made 
cert,  of  service  of  sum.  &,  comp't  on  deft.;  and  rci'd  that 
E.  F.  covild  not  l)e  found  ;  also  rel'd  arrest  on  order,  made 
copy  of  undertaking  and  cert"d  same,  and  sent  same  and 
order,  and  sum.  5:  comp't  to  attorney  by  mail,  fees  re- 
turned at  dollars. 


FORMS  FOR   SIIi:iiIFFS.  (353 

"  7  Made  cert,  of  service  of  aflicJiivits  on  deft,  and  relM 
same  to  clerk  of  city  &  co.,  N.  Y.,  pd.  postage. 

"  10         Ilec'd  no.  that  plfls.  att'y  excepts  to  surety. 

"11  Served  no.  by  mail,  surety  wo'd  justify  before  II.  S., 
CO.  judge,  at,  &c. 

"  20  Surety  appeared  before  judge  A.  S.,  at,  &c.,  and  no  one 
appeared  to  oppose,  be  certified  to  sufTiciency,  &cc. 

No.  305. 

THE    LIKK    IN     CASK    OF    AN    EXECUTION. 

G.  IL,  Atl'y,  4  Wall  St.,  N.  Y. 
A.  B.  )      Ex.  agst.  joint    personal    prop'y  of 

185  against  >  dcfts.,  &.  separate  prop,    of  C.   D.   for 

Aug.  20.        C.  I).  &  E.  F.  )  81000,  and  int.  from,  &c.,  and  fees. 
"  20         Gave  att'y.  adm.  of  receipt  of  ex.  at  10  p.  m. 
"  21         Levied  on  goods  of  defts.  in  their  store  in  U. ;  made 

inventory  and  took  receipt  of  J.  K.  on  inventory. 
"  22         Advertised  goods  to  be  sold  at  store  Aug.  28,  at  10  o'c; 
posted  no.  at  P.  O.  ;  door  of  store  and  in  Mansion  House. 
"  28         Goods  sold  by  me  at  auction  and  brought  8250 ;  de- 
ducted my  fees  dollars,  and  appli'd  bal.  8       on  ex'n. 
"  29         Ex'd  records  at  co.  elk's  office  as  to  lands ;  put  no.  of 
which  annexed  is  copy  in  Gazette  ;  sale  on  12  Oct. 
at    10   o'c.    at   public  house  kept   by  in,  &:c.,  and 
posted  3  copies  in,  &c. 
Oct.  12         Premises  sold  ;  first  parcel  for  850  to  H.  J. ; 

2d       "       "    500    "  R.  L, 
"    15         First  parcel  held  by  lease,  of  which  4  years  remain; 

executed  deed  to  purchaser;  fees  for  deed  pd.  by  him. 
"    16        Executed  to  purchaser  of  2d  parcel  cert,  thereof;  time 

of  redemption  185  . 

"    21         llec'd.  atli't.  of  pub.  of  no.  in  Gazette;  fees  8 
"    26         My  fees  on  sale,  including  printer's   fees,  8  de- 

ducted am't  from  proceeds  of  sale,  and  applied  bal.  on 
ex.  ;  pd.  amt.  to  ])ins.  att'y  and  took  his  rec'pt ;  return'd 
made  on  ex.  8  and  nulla  bona  for  residue. 

185  X.  Y.  tendered  8  and  a  copy  of  a  docket  of  judf^'t 

Jan.  1.     cert,   by  cl'k  of  co. ;    and    his  own  afii'dt  of  amt. 

due  on  judg't,  and  claimed  to  redeem  2d  desc'ed  prem.; 
rec'd  money  and  papers,  and  granted   him   cert,  thereof; 
rec'd  fees  therefor  from  him;  fil'd  cert,  thereof  with  co.  cl'k. 
"    3        Pd.  money  to  R.  L.  and  took  his  rec'pt. 
"     5        No  other  person  iiaving  redeemed  ex.  deed  to  X.   Y. 
of  premises  ;  he  pd.  fees. 
71 


664  FORMS  FOR  CORONERS. 


FORMS    FOR    CORONERS. 

A.^SICXMENT    OF    DISTRICT.S    IN     ^VIII(  II    CORONERS    TO    ACT    I\    NKW    YnRK, 

AuW,  ()S'Jl. 

City  and  county  of  New  York,  ss.  I,  the  mayor  of  the  said  city, 
in  pursuance  of  the  statutes  ol'  this  state,  relative  to  the  assignment 
of  the  districts  in  which  the  coroners  of  the  said  city  shall  exercise 
the  duties  of  their  oflice,  do  hereby  assign  the  several  senate, districts 
of  the  said  city  to  the  following  jiersons,  who  were  elected  such  coro- 
ners at  the  last  general  election,  as  follows :  The  senate  district 
to  A.  B. ;  the  senate  district  to  C.  I).;  the  senate  district 
to  E.  F. ;  and  the             senate  district  to  G.  11.     Dated,  vSic. 

F.  W.,  Mayor  of  New  York. 


IVo.  21>7. 

SUBrCENA    FOR    WITNESS. 
Ante,  ^914. 
The  People  of  the  State  of  New  York  to 

We  command  you  and  each  of  you,  that  all  business  and  excuses 
being  laid  aside,  you  be  and  appear  before  the  undersigned,  one  of 
the  coroners  of  the  county  of  at  on  the  at      in  the 

forenoon,  (or  forthwith)  to  testify  upon  an   inquest  then  and  there  to 
be   had   upon  the  body  of  deceased,  (or  upon  the   body  of  a 

person  whose  name  is  unknown)  (or  upon  the  examination  of 
charged  ujion   incjuest  with  the  murder  of  )  and  hereof  fail  not 

at  your  peril. 

Witness  the  hand  of  said  coroner  this  day  of  18 

A.  B.,  Coroner. 


IVo.  20§. 

ATTACHMKNT    A(;AINST    A    WITNESS. 
Ante,  ()9\i. 
The  Peoj)le  of  the  Slate  of  New  York,  to  the  Sheritl"  or  to  any  Mar- 
shal or  Constable  of  the  county  of  : 

We  command  you  that  you  attach  and  bring  him  before  the 

undersigned,  one  of  the    coroners   of  said   county,  at  in    said 

county,  forthwith,  to  testify  upon  a  certain  inquest  (as  in  the  sub- 
pa-na)  and  also  to  answer  all  such  matters  as  shall  be  ol)jected  against 


FORMS  FOR  CORONERS.  555 

him,  for  llial  lie  having  licen  <luly  sub[)ODnae(l  to  attend  upon  such 
inquest,  has  refusetl,  or  neglected  to  allend  in  coiiionnity  to  such 
sul)i)aMia,  and  liave  you  then  there  this  writ. 

Witness  the  liand  of  the  said  coroner  tliis  day  of  \H 

A.  B.  Coroner. 


IVo.  200. 

RETURN    TO    TIIK    ATTACHMENT. 
Ante,  (;C39. 

I  have  arrested  the  within  named  and  have  him  in   my   cus- 

tody now  here,  as  I  am  within  commanded.     Dated  18 

H.  C,  Sherift 


No.  300. 

OATH  TO  THE  FOREMAN  OF  JURY. 

You  do  swear  that  you  will  well  and  truly  inquire  how  and  in  what 
manner  when  and  where,  the  person  lying  here  (or  whose  body  you 
have  just  viewed,  as  the  case  may  be,)  came  to  his  death  (or  was 
wounded)  and  who  such  person  was,  and  into  all  the  circumstances 
attending  such  death  (or  wounding)  and  by  whom  the  same  was  pro- 
duced;  and  that  you  will  make  a  true  inquisition  thereof,  according 
to  the  evidence  oflered  to  you,  or  arising  from  the  investigation  of  the 
body  :  so  help  you  God. 


No.  301. 

OATH    TO    THE    JURORS. 

The  same  oath  which  A.  B.,  the  foreman  of  this  inquest  hath  on 
his  part  taken,  you  and  each  of  you  do  now  take,  and  shall  well  and 
truly  observe  and  keep  on  your  part :  so  help  you  God. 


No.  302. 

OATH    TO    WITNESS. 

The  evidence  you  shall  give  upon  the  inquest  touching  the  death 
(or   wounding)    of  (or   of  the   person  whose   body   has  been 

viewed)  shall  be  the  truth,  the  whole  truth,  and  nothing  but  the  truth: 
so  help  you  God. 


55(3  FOllMS   I'Dli    CORONEIiS. 

OATH     TO     INTKIirUr.TI-.R. 

You  shall  truly  interpret  to  the  witness  the  oath  that  shall  be 
aclnunistercd  to  him.  upon  this  impiest ;  and  shall  also  truly  interpret 
between  the  coroner,  the  jury  (and  the  counsel)  and  llie  witness  :  so 
hilp  you  God. 

Mo.  301. 

INQUISITION. 
Ai\W,  ^922. 
JStati:  of  Xkw   York, 
County  of  ss. 

Inquisition  taken  at,  *fcc.,  on,  &c.,  before  one  of  the  coroners 

of  said  county,  upon  view  of  the  body  of  C.  D.,  (or  jierson  unknown) 
then  and  there  lying  dead  (or  wounded)  upon  the  oath  of  good 

and  lawful  men  of  the  said  county,  wiio  being  duly  summoned  and 
sworn  to  inquire  into  all  the  circumstances  attending  the  death  (or 
wounding)    of  the  said  (or  person   unknown)    and   by  whom 

the  same  was  produced,  and  in  what  manner,  and  when  and  where 
the  said  C.  D.  came  to  his  death  (or  was  wounded)  do  say,  upon 
their  oaths  aforesaid,  that* 

In  witness  whereof,  as  well  the  said  coroner  as  the  jurors  aforesaid, 
have  to  this  inquisition  set  their  hands  and  seals,  on  Jihe  day  of  the 
dale  hereof.  C.  D.,  Coroner.     (L.  S.) 

Foreman  of  Jury.     (L.  S.) 
Jurors. 

(L.  fS.)  &c. 

No.  305. 

IN     A    CASK     OF     MUKDF.R. 

After  the  asterisk,  add  :  "  one  A.  B.  of,  vfec,  on,  «fcc.,  at  o'clock 
at,  &c.,  in  said  county,  feloniously  and  of  malice  aforethought,  made 
an  assault  upon  the  body  of  the  said  C.  D.,  then  and  there  present  ; 
and  the  aforesaid  A.  B.,  with  a  certain  knife  made  of  iron  and  steel, 
(or  with  a  certain  sharp  pointed  instrument  to  the  jurors  unknown) 
violently  and  of  malice  aforethought,  inflicted  a  mortal  wound  upon 
the  left  side  or  breast  of  the  said  C  D.,  of  which  wound  the  said  C.  I). 
then  and  there  instantly  (or  shortly  thereafter,  on,  &c.)  died.  And 
so  the  jurors  aforesaid  say,  that  the  said  A.  li.  did  then  and  there 
feloniously  kill  and  murder  the  said  C.  D.  (or  i>erson  unknown)  in 
manner  and  form  aforesaid,  against  the  jteace  of  the  people  of  the 
stale  of  New  York  and  their  dignity. 


FORMS    FOR   CORONERS.  557 

Or,  "  with  a  rertaiii  heavy  cluh  of  wood,  altoul  three  feet  lon^'  ;  (or 
billet  ol"  Wood)  or  j»iece  of  iron  alK)iit  five  feet  long  and  one  inch 
sfiiiare,  wiliridly,  feloniously  and  of  malice  aforesaid,  indicted  a  mortal 
woiuul  upon  the  head  of  the  said  C.  D.,  of  which  he  then  and  there 
died  ;  and  so  the  jurors,"  &c. 

Or,  "  with  a  certain  jjistol,  known  as  a  '  revolver,'  (or  a  rifle  gun, 
shot  ^fun,  or  musket)  loaded  with  gunpowder  and  hall  (or  shot)  he,  the 
said  A.  B.,  violently  and  of  malice  aforethought,  inflicted  a  rjiortal 
Wound  upon  the  lower  part  of  the  belly  or  abdomen  of  said  C.  D.,of 
which  he  then  and  there  died  ;  and  so  the  jurors,"  &c. 

O]-,  "  placed  a  certain  linen  handkerchief  (or  cord)  about  the  neck 
of  the  said  C  D.,  violently,  feloniously  and  of  malice  aforethought, 
and  did  then  and  there  choke,  strangle  and  suffocate  the  said  C.  D. ; 
and  of  which  choking,  strangling  and  suffocation,  the  said  C.  D.  then 
and  there  instantly  died  ;  and  so  the  jurors,"  &:c. 

Or,  "did  mix  and  mingle  a  certain  quantity  of  white  arsenic,  the 
said  A.  B.  then  knowing  the  same  to  be  a  deadly  poison,  in  a  certain 
quantity  of  coffee  ;  and  the  said  A.  B.  then  and  there  contriving  and 
intending  the  said  C.  D.  with  poison  feloniously  to  kill  and  murder, 
did  feloniously,  "willfully,  and  of  his  malice  aforethought,  give  the 
poison  so  mixed  and  mingled  as  aforesaid,  to  the  said  C.  D.,  to  take 
and  drink  and  swallow  ;  and  the  said  C.  D.,  not  knowing  that  the 
same  was  poison,  by  the  procurement  of  the  said  A.  B.,  did  take,  drink 
and  swallow  the  said  poison,  so  as  aforesaid  mixed,  whereof  the  said 
C.  D.  became  sick  and  distressed  in  body,  and  afterwards,  on  the  day 
aforesaid,  did  die  of  the  poison  aforesaid ;  and  so  the  jurors,"  &c. 

No.*  306. 

WHERE    THERE    ARE    ACCESSARIES     BEFORE    THE    FACT. 

Add,  after  the  description  of  the  murder :  "  and  the  said  jurors, 
upon  their  oaths  aforesaid,  farther  say,  that  E.  F.  and  G.  H.  of,  &c., 
were  feloniously  present  with  loaded  pistols  (or  as  the  case  may  be) 
at  the  time  of  the  felony  and  murder  aforesaid,  in  form  aforesaid, 
committed,  and  that  the  said  E.  F.  and  G.  H.  did  comfort,  aid  and 
abet  the  said  A.  B.  in  doing  and  committing  the  felony  and  murder 
aforesaid,  against  the  peace  of  the  people  of  this  state  and  their 
dignity." 

No.  307. 

WHERE    A    BASTARD    IS    DESTROYED. 

After  the  asterisk,  add :  "  one  C.  D.  being  pregnant  with  a  female 


558  FORMS   VOll   COllONi:ilS. 

child,  was  on   the  at.  Sec,  alone   ami  secretly  delivered  of  the 

Shid  female  child  and  hrouijht  forth  the  same  alive  ;  and  the  said  C.  D. 
then  and  there  feloniously  and  with  malice  aforethought,  and  with 
intent  to  destroy  the  same,  \vra]>]>ed  up  and  foMed  said  new  born 
female  child  in  a  doth,  hv  means  of  which  wrapiiiiig  up  and  folding 
of  said  child,  the  same  was  tluti  and  there  sulfocaled  and  smothered, 
and  of  which  sulVocation  and  smothering  the  saiil  child  instantly  died." 

Or.  "  feloniously  and  with  malice  aforethought,  and  with  the  inten- 
tion »)f  destroying  the  said  new  born  female  child,  threw  the  same  into 
the  river,  in  the  said  by  means  whereof  the  said  new  born 

female  child  was  suffocated  and  drowned  in  tiie  waters  of  the  said 
river,  and  of  which  siill'ocalion  and  drowning  the  said  new  born 
female  child  then  and  there  instantly  died." 

Or,  "  feloniously  and  with  malice  aforethought,  and  with  the  inten- 
tion of  destroving  the  said  new  born  male  child,  threw  the  same  into 
a  certain  ]irivy  there  situated,  by  means  whereof  he,  the  said  new 
born  male  child,  in  the  soil  or  filth  then  and  there  contained,  was  then 
and  there  sufiocated  and  smothered,  and  of  which  suffocation  and 
smothering,  he,  the  said  new  born  male  child,  instantly  died." 

Or,  "  the  said  C.  D.  then  and  there  in  a  paroxysm  of  temporary 
insanity,  caused  by  the  pains  of  child  birth,  choked  and  suffocated 
the  said  new  born  male  child,  so  that  it  instantly  died  ;  and  the  jury, 
on  their  oaths,  sav,  that  the  same  was  not  done  feloniously  or  with 
malice  aforethought,  but  in  the  agonies  of  pain  and  not  otherwise." 


No.  30§. 

WHERE    A    TEUSON    IS    FOUND    DEAD    WITH    MARKS    OF    VIOLENCE. 

After  the  asterisk,  add  :  "  that  the  body  of  the  said  C.  D.  was  found 
lying  dead  in  the  highway  (or  as  the  case  may  be)  on,  &c. ;  and  that 
said  bodv  when  so  found  as  aforesaid,  appeared  to  have  been  slabbed 
with  a  knife,  sword,  or  sonie  sharp  pointed  instrument  to  the  jurors  un- 
known, in  or  near  the  left  breast  thereof;  (or  jtierced  with  a  bullet  fired 
from  a  j)i8l(j|  or  gun)  (or  to  have  been  beaten  and  bruised  with  a  club, 
stick,  or  the  fist  of  .some  person  to  the  said  jurors  unknown  ;)  and  the 
said  jurors,  upon  their  oaths  aforesaid,  do  say,  that  said  C.  D.  came 
to  his  death  by  the  said  wounds  appearing  upon  his  body  as  aforesaid, 
and  not  otherwise;  but  who  inllicted  said  wounds  is  to  the  jury 
unknown." 


FORMS  FOR  CORONRRS.  559 


No.  300. 


UPON    AS     INFANT    SO    rfX'M). 


After  tlie  asterisk,  add  :  '•  tliiU  the  said  feiiiiile  infant  was  on,  &c., 
found  entirely  naked  and  dead,  in  a  certain  enclosure  of  in,  &c. ; 

that  said  iidant.  when  so  found  as  aforesaid,  appeared  to  liave  a  bruise 
upon  the  head,  by  which  the  skull  was  broken  (or  a  bruise  or  mark 
or  discoloration  about  the  neck,  as  if  the  same  had  been  ciioked  or 
sufTocated  by  pressure  thereon  ;)  and  that  the  said  female  infant  was, 
at  the  time  of  iis  death,  of  about  the  age  of  and  that  the  parents 

or  guardian  of  the  said  child  are  to  the  jurors  unknown;  and  so  the 
jurors  aforesaid,  upon  their  oaths  aforesaid,  do  say,  that  the  said 
female  infant  came  to  her  death  as  aforesaid,  by  the  said  bruise  or 
blow  upon  the  head,  but  who  inflicted  the  said  blow  or  wound  is  to 
the  jury  unknown." 

I¥o.  310. 

KILLING    BV    AN    OFl'ICKK    WHKN    KErilSTKD. 

After  the  asterisk,  add  :  "one  A.  B.,  on,  &c.,  at,  &c.,  being  then 
the  sherifl"  of,  &c.,  (or  a  constable,  &c,,  or  police  officer  of  the  said 
)  and  having  lawful  process  for  the  arrest  of  the  said  C.  D. 
upon  a  charge  of  felony,  did  then  and  there  attempt  to  arrest  the  said 
C.  D.  upon  such  warrant,  but  the  said  C.  D.,  and  E.  F.  and  G.  H., 
the  sons  of  said  C.  D.,  did  violently  resist  and  oppose  the  execution 
of  the  said  warrant  bv  said  A.  B. ;  and  after  the  said  A.  B.  had  seized 
and  arrested  the  said  C.  D.,  the  said  C.  D.  did  violently  break  away 
from  such  arrest,  and  the  said  A.  B.  thereupon  fired  a  pistol,  which 
he  held,  at  the  said  C.  D.,  to  wound  or  injure  him  so  that  he  might 
not  escape,  as  he  otherwise  would  have  done  ;  but  the  said  A.  B. 
inflicted  a  mortal  wound  upon  the  neck  of  the  said  C.  D.,  of  which 
he  instantly  died  ;  and  so  the  jurors  aforesaid,  upon  their  oaths  afore- 
said, say  that  the  said  C.  D.  came  to  his  death  in  the  manner  aforesaid, 
by  the  hand  of  the  said  A.  B.,  in  the  legal  and  necessary  attempt  of  the 
said  A.  B.  to  prevent  the  escape  of  the  said  C.  D.  iVom  the  arrest 
aforesaid;  and  that  the  said  wound  was  not  given  feloniously  or  with 
malice  aforethought,  but  for  the  cause  aforesaid." 

No.  311. 

KILLING    nV    AN    OFFICER     WIIF.N    A      FF-LONY    IS    COMMITTF.D. 

After  the  asterisk,  add:  "  the  .said  C.  D.  at,  &c.,  on,  &c.,  being  then 
and  there  engaged  in  an  attempt  to  commit  a  burglary  by  feloniously 


560  FORMS   I- OR  CORONi:US. 

eiiterini;  the  chvolling  of.  Sec,  on.  iSrc,  in  tlio  ni^'lit  time,  one  A.  B., 
bfini,'  then  a  police  olHeer,  (constable,  marshal  or  w  atcliiiian,)  and 
then  and  there  present,  did  aiu-nipt  to  prevent  such  huri,'lary  and 
felony  hy  seizing  ami  arreslini^  the  said  C  !>.,  hut  he,  the  said  C.  D., 
bein<:  about  to  escai>c,  and  the  said  A.  B.  being  unable  to  h<»ld  and 
detain  him.  tlid  strike  the  said  C  D.  a  blow  upon  the  head  with  his 
club,  for  the  jmrpose  of  disabling  the  said  C.  D.  and  preventing  such 
escape;  and  thereby  inflicted  a  wound  upon  the  head  of  said  C.  D., 
of  which  he  instantly  (or  tiiereafter,  to  wit,  on,  &;c.)  died." 


No.  312. 

^vnEUI:  the  deccased  attemtted  to   commit  a  uouuery. 

After  the  asterisk,  add  :  "the  said  C.  D.,  on,  &c.,  at,  &c.,  violently, 
willfully,  and  feloniously  made  an  assault  upon  one  A.  13..  then  there 
with  the  intent  to  rob  the  said  A.  13.  of  a  sum  of  money,  then  in  the 
possession  of  the  said  A.  B.  ;  by  which  felonious  and  wicked  assault, 
the  said  C.  D.  put  the  said  A.  B.  in  great  bodily  fear,  and  the  said 
A.  B.  was  in  danger  of  losing  said  money,  in  the  manner  aforesaid  ; 
and  being  so  in  danger,  he,  the  said  A.  B.,  then  and  there,  for  the 
purpose  of  protecting  his  property  from  being  feloniously  taken  as 
aforesaid,  did  draw  a  pocket  knife  and  strike  or  stab  the  said  C.  D. 
in  the  abdonien,  and  thereby  inllicted  a  wound  upon  the  said  C.  D. 
of  which  he,  the  said  C.  D.,  instantly  (or  on,  &c.,)  did  die ;  and  the 
jurors  aforesaid,  do,  on  their  oaths  aforesaid,  say  that  the  said  A.  B. 
did  kill  the  said  C.  D.,  in  manner  aforesaid,  not  feloniously,  or 
with  malice  aforethought,  or  against  the  ]ieace  of  the  jieople  of  this 
state,  but  in  defence  of  his  property  as  aforesaid." 


No.  313. 

IN      SELF    DEFENCE. 

After  the  asterisk,  add:  "the  said  C.  1).  made  a  violent  assault 
upon  one  A.  B.  with  force  and  arms,  with  intent  to  kill,  maim  or 
dangerously  wound  the  said  A.  B.,  and  did  thereby  put  him,  the 
said  A.  B.  in  imminent  danger  and  bodily  fear  of  his  life  ;  and  the 
said  A.  B.,  then  and  there,  in  self  defence,  seized  a  loaded  pistol 
(club  or  billet  ul'  wnod,  a  knife  or  other  instrument)  and  shot 
(struck  or  stabbed)  the  said  C.  D.  in  the  left  breast  (or  inllicted  a 
wound  uf>on  the  head  of  said  (J.  D.)  whereof  he,  the  said  C.  D., 
instantly  (or  thereafter  on,  &c.,  at,  »&c.)  died  ;  and    the  jurors,  upon 


FORMS   FOR  CORONERS.  561 

their  oaths  aforesaid,  say  that  tht;  said  shooting,  (stahhinj;  or  IjIow) 
was  not  done  feloniously  or  with  malice  aforethon^lit,  or  against 
the  peace  of  the  ]>eoj)le  of  this  state  and  tlieir  dignity  ;  but  was  so 
done  by  the  said  A.  B.  in  self  defence." 

IVo.  314. 

IN    DKFENCR    OF    HOUSE    AND    lAMILY    AGAINST    RIOTF.IIH. 

After  the  asterisk,  add:  "the  said  C.  D.,  and  other  persons  to  the 
jury  unknown,  on,  &c.,  at,  &c ,  being  riotously,  tumultuously  and 
unlawfully  assembled,  and  having  violently  and  tumultuously  and 
unlawfully  assaulted  and  battered  the  dwelling  house  of  one  A.  B., 
w'ith  stones,  bricks,  clubs  and  other  instruments,  with  the  intent  to 
demolish  and  pull  down  said  house  (or  to  break  into  the  said  house) 
and  thereby  put  the  said  A.  B.  and  the  other  persons  in  said  house  in 
great  peril  and  danger  of  their  lives;  and  the  said  A.  B.,  in  defence 
of  himself  and  for  the  preservation  of  his  own  life,  and  the  lives  of 
the  other  persons  so  in  said  house,  and  also  for  the  purpose  of  pre- 
venting the  destruction  of  his  house  and  loss  and  injuring  of  his 
goods,  did  discharge  a  gun  called  a  rifle,  loaded  with  gunpowder  and 
a  bullet,  at  the  several  persons  so  riotously,  tumultuously  and  unlaw- 
fully assembled,  and  the  bullet  in  the  same  did  give  a  mortal  wound 
to  the  said  C.  D.  in  the  head,  of  which  the  said  C.  D.  then  and  there 
instantly  died ;  and  so  the  jurors  aforesaid,  on  their  oaths  aforesaid, 
do  say,  that  the  said  A.  B.  did  kill  the  said  C.  D.  in  manner  aforesaid, 
in  defence  of  himself  and  property,  and  not  feloniously,  or  with  malice 
aforethought." 

Wo.  315. 

WHEN    KILLED    BY    MILITARY    IN    SUPPRESSING    A    RIOT. 

After  the  asterisk,  add :  "  the  said  C.  D.,  with  E.  F.  and  G.  H.  and 
divers  other  persons  to   the  jury  unknown,  on  at  being 

riotously  and  unlawfully  assembled,  for  the  purpose  of  preventing  the 
laborers  and   workmen  on  the  canal  (or  railroad,  or  the 

operatives  in  the  factory)  from  working,  and  with  stonesv'clubs, 

guns  and  other  weapons,  did  threaten  the  destruction  of  the  property 
of  the  contractors  on  said  work  (or  of  the  said  factory)  and  tiie 

lives  of  such  laborers  and  operatives  ;  and  sheriff  of  said  county, 

(or  mayor  of  the  said  city)  in  the  exercise  of  the  duties  and 

powers  conferred  upon  him,  did  call  out  the   military  to  aid  in  sup- 
pressing such  riot,  and  prevent  the  destruction  of  property  and  loss 
of  life  ;  and  having  warned  and  admonished  said  rioters  then  and  there 
72 


r^]2  I'ORMS  FOR  cc)roni-:rs. 

91)  unhiwlully  nssemblfd  to  desist  fnun  the  acts  ;  but  the  said  jicrsons, 
disregarding  such  warning  and  orders  ol  said  sheiill",  (or  mayor) 

and  continuing  their  assaults  as  aforesaid  ;  and  also,  having  attacked 
said  military,  hy  the  discharge  of  stones,  bricks  and  guns  at  thorn,  the 
said  sherill  (or  mayor)  ilid  thereupon,  a.s  he  lawfully  might,  command 
the  said  military  to  fire  u{)on  the  said  rioters;  and  thereupon  the  said 
military  did  lire  and  discharge  their  guns  at  the  said  rioters  under  and 
pursuant  to  such  command,  and  that  the  charge  of  one  of  said  guns 
took  eflect  upon  the  head  of  the  said  C.  I).,  then  and  there  so  riotously 
engaged  as  aforesaid,  inflicting  a  mortal  wound  npfin  the  said  C.  D., 
of  which  wound  he,  the  said  C.  U.,  then  and  there  died  ;  and  the 
jurors  aforesaid,  upon  their  oaths  aforesaid,  say,  that  the  said  death 
was  not  committed  feloniously  or  with  malice  aforethought  ;  nor 
against  the  peace  of  the  people  of  the  slate  of  New  York,  but  neces- 
sarily and  in  the  discharge  of  a  lawful  duty,  in  manner  aforesaid." 

No.  316. 

WHERE  ONE  HAS  uir.n   a    natural  death. 

After  the  asterisk,  add  :  "  the  said  C.  D.  on,  &.C.,  at,  *k:c.,  was  found 
iving  dead  in  the  highway  near  the  house  of  and  that  he  had  no 

mark  of  violence  appearing  upon  his  body  :  and  so  the  said  jurors, 
upon  their  oaths  aforesaid,  say,  that  the  said  C.  D.  died  by  the  visita- 
tion of  God,  in  a  natural  way  and  not  otherwise." 

Ifo.  317. 

WHERE    ONE     IS    ACCIDENTALLY    DROWNED. 

After  the  asterisk,  add  :  ''the  said  C.  D.  on,  &c,,  went  into  the 
river  in  the,  &c.,  aforesaid,  to  bathe  (or  fell  from  a  boat  or 
bridge,  or  the  boat  was  upset,  or  was  skating  upon  the  ice,  and  the 
sauje  broke  through  and  said  C  D.  sunk  in  the  water,)  and  then  and 
there  accidentally  and  by  misfortune  was  suflbcated  and  drowned  in 
the  waters  of  the  said  river ;  of  which  suflbcation  and  drowning  the 
said  C  I),  then  and  there  died  ;  and  so  the  jurors  aforesaid  tuiy,  that 
the  said  C.  D.,  in  manner  ami  form  and  by  the  means  aforesaid,  acci- 
dentally and  by  misfortune  came  to  his  death,  and  not  otherwise." 

No.  31§. 

Wnr.UK    ONE     ACCIDENTAt.LY    TAKES    rOIHON. 

After  the  asterisk,  add  :  •'  that  the  said  ('.  I),  being  unwell,  did  mix 
and  mingle  a  certain  quantity  of  white  ar.senic,  through  mistake,  the 


FORMS  FOR  CORONERS.  563 

said  C.  D.  not  knowing  tliat  the  same  was  white  arsenic,  or  that  the 
same  was  a  deailly  poison,  but  supi)osin{^  that  the  same  was  in  a 

certain  quantity  of  coU'ec,  and  did  then  and  there  drink  and  swallow  the 
poison  aforesaid,  whereby  and  by  reason  of  which  the  said  C  I),  did 
on,  &c.,  die  of  the  poison  aforesaid,  so  taken  as  aforesaid  ;  and  so  the 
jurors  aforesaid,  npon  their  oaths  aforesaid,  say,  that  the  said  C.  D. 
did  voluntarily,  through  mistake,  poison  himself  in  manner  and  form 
aforesaid." 


No.  310. 

WHERE    0\E     I.S     ACCIDEN'TAI.LY     CHOKED    IV    .SWALLoWIXG. 

After  the  asterisk,  add  :  "the  said  C.  D.  on,  &c.,  at,  &c.,  being 
then  and  there  eating  his  dinner,  did  attempt  to  swallow  a  piece  of 
meat,  and  the  same  became  lodged  in  the  throat  of  the  said  C.  D. 
and  could  not  be  removed  ;  and  that  in  consequence  of  so  remaining 
in  the  throat  of  the  said  C.  D.,  the  same  caused  a  choking,  suflbcation 
and  strangulation  of  the  said  C.  D.,  of  which  suflbcation  and  strangu- 
lation, the  said  C.  D.  then  and  there  instantly  died  ;  and  so  the  jurors 
aforesaid,  upon  their  oaths  aforesaid  do  say,  that  the  said  C.  JJ.  did 
die  from  the  cause  aforesaid,  and  not  otherwise." 


No.  320. 

DEATH    FROM    OLD    AGE    AND    WANT    OF    CARE    AND    DIET. 

After  the  asterisk,  add  :  "the  said  C.  D.  being  very  old  and  infnm, 
and  having  no  person  to  take  care  of  him,  or  furnish  him  with  proj)er 
food,  and  not  having  eaten  any  thing  for  several  days,  did  on,  &c., 
at,  &c.,  die  ;  and  so  the  jurors  aforesaid  do  say,  that  the  said  C.  D. 
did  die  of  old  age  and  the  want  of  proper  care  and  diet,  and  not 
otherwise." 


No.  321. 

PEATII    FROM    INTEMPERANCE    AND    WANT    OF    FOOD. 

After  the  asterisk,  add:  "the  said  C.  D.  being  an  intemperate  per- 
son, and  having  no  home,  but  being  of  vagrant  habits,  and  having 
taken  no  food  for'some  time,  but  having  drank  of  intoxicating  liquors 
freely  during  that  time,  and  being  constantly  drunk,  or  intoxicaied, 
did  on,  &c.,  at,  &c.,  die  ;  and  so  the  jurors  aforesaid  do  say,  that  the 
said  C.  D.  did  die  in  consequence  of  the  use  of  intoxicating  liquors, 
which  death  was  hastened  by  abstinence  from  food,  and  not  otherwise.*' 


5GI  FORMS   FOR  COROXKRS. 

No.  :viJ. 

nr.ATii   mow  diskask  ckkatki)  iiy   ivrrMrEnANCE. 

After  the  asterisk,  add  :  "  the  said  C.  1).  being  a  person  of  intem- 
perate hahits,  the  CDnlinui'd  use  by  him  of  intoxicating  Hfiuors  had 
crcateil  a  disease  of  ihi*  stomach  and  lungs  in  him,  the  said  C.  D.,  of 
which  he.  the  said  ('.  IV,  on,  <Sic.,  at,  &c.,  died  ;  and  so  the  jurors 
aforesaid,  on  their  oaths  aforesaid,  say,  that  the  said  C.  D.  came  to 
his  death  from  the  cause  aforesaid,  and  not  otherwise." 

No.  323. 

DEATH     FROM     DKl.IRILM     TREMENS. 

After  the  asterisk,  add:  "the  said  C.  D.  being  a  person  of  intem- 
j^erate  habits,  and  addicted  to  intoxication,  was  on  the,  &c.,  at,  &.c,, 
attacked  with  a  fit  of  dehrium  tremens,  of  which  said  attack  the  said 
C.  D.  then  and  there  died. 

I¥o.  321. 

nv    JU.MPING    OR     FALLING     FROM    THE    CARS. 

After  the  asterisk,  add :  "  the  said  C.  D.  being  a  passenger  (or  em- 
ployed upon)  the  railroad  cars,  upon  the  New  York  Centra!  Radroad, 
on  the,  &c.,  and  when  so  upon  the  said  cars,  and  while  they  were  in 
rapid  motion,  he,  the  said  C  D.,  leaped  from  said  cars  (or  fell  from 
said  cars)  by  means  of  which  he,  the  said  C.  D.  was  bruised  and 
injured  in  the  head  (or  as  the  case  may  be)  to  such  a  degree  that  the 
said  C.  D.  instantly  (or  thereafter,  to  wit,  on  the,  «fec.,  at,  &.c.,)  of 
the  said  bruises  and  injuries,  died  ;  and  so  the  jurors  aforesaid,  say, 
that  the  said  C.  D.  came  to  his  death  as  aforesaid,  and  not  other- 
wise." 

Or,  "  was  so  mutilated  that  it  became  necessary  to  amj)utate  his 
right  leg,  above  the  knee,  but  that  the  said  C.  D.  died  under  the  opera- 
tion, though  the  same  was  performed  in  a  careful,  skilful  and  jiroper 
manner;  and  so  the  jurors  aforesaid,  say,  that  the  said  C.  D.  died  of 
the  injuries  so  received  by  him  in  so  jumping  (or  falling)  from  the 
cars  aforesaid,  and  not  otherwise." 

No.  33.'S. 

DKATII    or    A    cmi.l)    1!V    KALMNc;    IN    FIRE,    ETC. 

After  the  asterisk,  add  :  "  the  said  C.  D.,  being  a  child  of  years 


FORMS   FOR  CORONERS.  565 

or  thereabouts,  was  left  alone  by  itself,  by  A.  B.,  the  mother  (or  nurse) 
of  said  C.  D.,  in  a  room  where  there  was  a  fire  burnin;^  (or  a  heated 
stove  with  fire  in  it)  and  while  so  alone  in  such  room,  the  said  C  I). 
fell  into  the  said  fire  (or  a,i,'ainst  the  said  heated  stove)  and  thereby 
and  in  ronseciucnce  thereof,  became  so  burned  and  injured,  that  the 
said  C.  I),  instantly  (or  on,  A:c.,  thereafter)  died;  and  so  the  jurors 
aforesaid,  upon  their  oaths  aforesaid,  say,  that  the  said  (".  I).  <lied  of 
the  burns  and  injuries  received  by  it,  in  falling  into  the  said  fire, 
through  the  carelessness  and  neglect  of  the  said  A.  B.,  and  not 
otherwise." 


No.  326. 

SUICIDE    BY    A    LUNATIC. 

After  the  asterisk,  add  :  "  the  said  C.  D.  on,  &c.,  at,  &c.,  being  a 
lunatic  and  person  of  insane  mind,  did  fasten  a  rope  or  cord  to  a  beam 
in  the  barn  of  him,  the  said  C.  D.,  and  place  his  neck  in  a  loop  or 
noose  at  the  other  end,  and  thereby  suspended  or  hung  himself  until  he 
became  dead  ;  and  so  the  jurors,  upon  their  oaths  aforesaid,  say,  that 
the  said  C.  D.,  being  of  insane,  mind  as  aforesaid,  did  voluntarily  hang 
himself  in  manner  aforesaid." 

Or,  "  the  said  C.  D.  on,  &c.,  at,  &c.,  being  a  lunatic  and  person  of 
insane  mind,  did  cut  his  throat  with  a  knife  or  razor,  (or  stabbed  him- 
self with  a  knife,  or  shot  himself  with  a  loaded  pistol  or  gun)  whereby 
the  said  C.  D.,  being  of  insane  mind  and  a  lunatic  as  aforesaid,  did 
inflict  a  mortal  wound  upon  himself,  whereof  he  instantly  died." 

Or,  "  did  throw  himself  into  the  waters  of  the  Erie  canal,  whereby 
and  by  reason  whereof,  he,  the  said  C.  D.,  became  suffocated  and 
drowned  in  the  said  waters,  of  which  suffocation  and  drowning,  the 
said  C.  D.  died. 

No.  327. 

WHERE    ONE    KILLS    HIMSELF    IN    A    FIT    OF    TTMronARY    INSANITY. 

After  the  asterisk,  add:  "  the  said  C.  D.  being  in  feeble  health  and 
of  depressed  spirits,  was  on,  &c.,  at,  &c.,  seized  with  a  fit  of  delirium 
or  insanity,  and  did  then  and  there,  in  such  fit  or  delirium,  take,  drink 
and  swallow  a  large  quantity  of  prussic  acid,  the  same  being  a  deadly 
poison;  whereof  the  said  C.  D.  then  and  there  instantly  died  :  and  so 
the  jurors  aforesaid,  on  their  oaths  aforesaid,  say,  that  the  said  C.  D., 
while  under  such  state  of  temporary  insanity,  did  take  the  poison 
aforesaid,  and  of  which  he  died  as  aforesaid." 


566  FORMS   FOR   C()RC)N1:KS. 

\viii:iu;   (iXK  Commits    siiciiti:. 

After  the  asterisk,  aiiii :  'tlic  salt!  ('.  P.  did  on  the  at 

voluntarily  and  of  liis  own  malice  afoielliou;.'lil,  inlliot  a  mortal  wound 
in  and  u|>on  the  body  of  liim,  the  said  C.  1).,  hy  slabhin,:;  himself  in 
the  left  side  with  a  knife,  (or  other  sharp  pointed  instrument ;  by  cut- 
ling  his  throat  with  a  ra/.or.  or  by  blowing  out  his  brains  with  a  gun, 
or  pistol  loaded  with  powder  and  ball,)  of  which  said  mortal  wound 
the  said  C.  D.  then  and  there  instantly  died  ;  and  so  the  jurors  afore- 
said, upon  their  oaths  aforesaid,  say,  that  the  said  C'.  D.  did  then  and 
there  in  manner  aforesaid,  and  at  the  place  af()resaid,  voluntarily  and 
of  his  own  malice  aforethought,  kill  and  murder  himself,  the  said  C.  D., 
against  the  peace  of  the  people  of  this  state  and  their  dignity." 

Or,  "mix  and  mingle  a  certain  quantity  of  corrosive  sublimate,  the 
said  C.  I),  then  and  there  knowing  the  said  corrosive  sublimate  to  be 
a  deadly  poison,  in  a  certain  quantity  of  coffee,  and  the  said  C.  D.  did 
then  and  there  at  the  time  and  place  aforesaid,  so  as  aforesaid,  drink 
and  swallow  the  poison  aforesaid,  whereby  and  by  reason  of  which, 
he  became  sick  and  distressed  in  body,  and  on  the  day  aforesaid 
did  die." 

Or,  "voluntarily  and  of  his  own  malice  aforethought,  drowned  him- 
self in  the  Erie  canal,  in  the,  *Scc." 

Or,  "voluntarily  and  of  his  own  malice  aforethought,  hanged  himself 
bv  the  neck,  by  a  roj)e  fastened  to  a  beam  in  his  barn,  whereby  he 
was  choked  and  suffocated,  and  of  such  hanging  and  choking  did  die." 

No.  329. 

WHERE    OM:    AinED    in    the    self    MUlUiKU. 

After  the  asterisk,  add  :  "  and  the  said  jurors  upon  their  oaths  afore- 
said, farther  say,  that  E.  F.,  of  was  feloniously  present,  and  did 
then  and  there  deliberately  aid  the  said  C.  I),  in  the  commission  of 
the  self  murder  aforesaid,  against  the  peace  of  the  people  of  this  state 
and  their  dignity." 

Nu.  :t:to. 

lOUM      OF      TAKIM;      EXAMINATIOV      (>V     WITNESSES     BEKOUE    A    CORONER's 
JURY. 

Ante,  ^920. 
County  of  88.      Examination  of  witnesses    produced,  swom 


FORMS  FOR  CORONERS.  567 

and  examined  on  the  day  of  at  before  <''ne  of 

the  coroners  of  the  said  county,  an<l  jurors,  good  and   lawful 

men  of  the  said  county,  (hily  sunininned  and  sworn  by  the  said  coroner 
to  inquire  how  and  in  what  manner  and  when  and  where  (or 

person  unknown)  came  to  his  death  (or  was  wounded)  and  who  such 
person  was,  and  into  ail  the  circumstances  attending  such  death  or 
wounding;  and  to  niiike  true  iucjuisition,  according  to  the  evidence, 
or  arisin;:  from  the  investigation  of  the  body  : 

G.  II.,  beiii'j;  i)roduccd  and  duly  sworn  and  examined,  testifies,  and 
says,  that  (g'^'ti  '''■''  testimony  in  full.) 

Subscribed  and  sworn  before  me 
this  day  of  18 

A.  I>.,  Coroner. 

I  do  hereby  certify  that  the  foregoing  testimony  of  the  several  wit- 
nesses appearing  ujion  the  foregoing  inquest,  was  reduced  to  writing 
by  me,  and  that  the  said  testimony  is  the  whole  of  the  testimony  taken 
on  such  inquest,  and  that  the  same  is  correctly  stated,  as  given  by 
the  witnesses,  respectively.  A.  B.,  Coroner. 

No.  3»1. 

WARRANT    OF    CORONER    FOR    ARUK.ST    OF  PARTY  CHARGED    HY    THE    IN'aL'I- 
SITION    WITn    THE    CRI.ME. 

Ante,  ^031. 
To  the  Sheriff,  or  any  Constable  or  Marshal  of  the  county  of  : 

Whereas,  by  the  inquisition  of  good  and  lawful  men  of  said 

county,  taken  upon  their  several  oaths  before  me,  one  of  the  coroners 
in  and  for  said  county,  at  tlie  dwelling  house  of  at  C.  D. 

is  charged  with  having  feloniously  killed  and  murdered  on  the 

at  ;  you  are  therefore  hereby  commanded,  in  the  name 

of  the  people  of  the  state  of  New  York,  forthwith  to  arrest  the  said 
C.  D.  and  bring  him  before  me  at  to  be  dealt  with  according 

to  law. 

Given  under  my  hand  this  day  of  18 

A.  B.,  Coroner. 


No.  332. 

OATH    TO    WITNESSES    ON    EXAMINATION. 

You  do  swear,  that  you  will  true  answers  make  to  such  questions 
as  shall  be  put  to  you,  touching  the  complaint  for  murder  against 
:  so  help  you  God. 


5G8  FORMS   FOR  CORONERS. 


No.  33:1. 

County  of  ss.     I'.xuinination  of  witnesses  on  oath  taken 

before  me,  one  of  the  coroners  of  the  saul  county,  u\um  tlie 

examination  of  C.  D.,  who  is  charged  upon  inquest  before  me  on, 
*fcc..  as  such  coroner,  with  having  feloniously  on,  6cc.,  killed  and 
murdered  of,  &c.,  the   said  C.    D.   having  been   arrested  and 

brought  before  me  to  answer  the  said  charge,  and  such  examination 
being  taken  in  his  presence  and  hearing : 

E.  F.  being  sworn  and  examined,  testifies  and  says,  thai  (insert  his 
testimony  at  length,  and  as  near  as  may  be  in  his  language.) 

(Signed)  E.  F. 
Subscribed  and  sworn  before  me 
this  day  of  18 

A.  B.,  Coroner. 

On  his  cross  examination  by  the  prisoner's  counsel,  the  said  E.  F. 
says,  (insert  his  cross  examination.) 

(Signed)  E.  F. 
Subscribed  and  sworn  before  me 
this  day  of  18 

After  the  examination  of  the  foregoing  witnesses,  the  said  C.  D., 
the  prisoner,  was  then  and  there  examined  by  me,  (after  having  been 
first  duly  informed  by  me  of  the  charge  against  him,  and  that  he  was 
at  liberty  to  refuse  to  answer  any  cjuestion  that  might  be  put  to  him, 
and  after  being  allowed  a  reasonable  time  to  send  for  and  advise  with 
counsel.)  and  on  such  examination,  the  said  C.  D.  answered,  that  his 
name  is  C.  D. ;  that  he  is  by  occupation  a  ;  that   he  is  aged 

about  years  ;  and  that  he  resides  in  ;  and  that  by  advice 

of  his  counsel  he  declines  answering  any  further  questions. 

The  foregoing  answers  of  C.  ]).  to  the  several  interrogatories  i)ut 
to  him  on  such  examination,  were  reduced  to  writing  by  me,  and 
were  rer.d  by  me  to  the  said  C.  D.,  and  were  corrected  by  him 
and  made  conformable  to  what  he  declared  to  be  the  truth  ;  and  they 
contain  all  the  answers  so  made  by  said  prisoner. 

A.  13.,  Coroner. 

After  the  examination  of  the  said  prisoner,  there  was  called,  as  a 
witness  on  behalf  of  the  said  prisoner,  G.  11.,  who  being  sworn  and 
examined  in  the  jiresence  of  the  said  C.  D.,  testifies  and  says,  that,  &c. 

(Add  jurat.)  (Signed)  G.  II. 


FORMS  FOR  CORONF.RS.  569 

On  his  cross  examination  l)y  the  counsel  for  llic  people,  he  says, 
(add  jurat.)  (Signed)  G.  II. 

I  certify  that  the  foregoing  is  a  correct  statement  and  account  ol 
the  examination  of  the  several  witnesses  and  of  the  [)risoner,  taken 
by  and  before  mc  on  at  and  the  whole  of  the  testimony 

given  by  the  said  several  witnesses,  and  of  the  answers  given  by  said 
prisoner.  A.  P>.,  Coroner. 

IVo.  331. 

WARRANT    OF    COMMITMENT    OF    PRLSONER. 

Ante,  (,943. 

To  the  Sheriff,  or  any  Constable  or  Marshal  of  the  county  of  ; 

and  to  the  keeper  of  the  common  jail  of  said  county  : 

Whereas,  C.  D.  having  been  charged  upon  inquisition  taken  before 
me,  one  of  the   coroners   of  said  county,  on  on  the  oaths  of 

with  having  on  killed  and   murdered  one  and  the 

said  C.  D.  having  been  brought  before  me  as  such  coroner,  to  answer 
to  the  said  charge  ;  and  on  the  examination  of  on  oath,  in  the 

presence  of  the  said  C.  I).,  and  on  the  examination  of  the  said  C.  D. 
without  oath,  (he  having  been  previously  informed  by  me  of  the  charge 
made  against  him,  and  that  he  was  at  liberty  to  refuse  to  answer  any 
question  that  might  be  put  to  him,  and  after  having  been  allowed  a 
reasonable  time  to  send  for  and  advise  with  counsel)  and  upon  the 
examination  of  the  whole  matter,  it  appearing  to  me  that  the  said 
crime  has  been  committed,  and  that  there  is  probable  cause  to  believe 
the  said  C.  D.  guilty  thereof; 

These  are  therefore,  to  command  you,  the  said  sherifl^,  constable  or 
marshal,  that  you  forthwith  convey  and  deliver  to  the  said  keeper  of 
the  said  jail,  the  body  of  the  said  C.  D. :  and  you,  the  said  keeper,  are 
hereby  required  to  receive  the  said  C.  D.  into  your  custody  in  the 
said  common  jail,  and  him  there  safely  keep  until  he  shall  be  dis- 
charged by  due  course  of  law. 

Given  under  my  hand  and  seal  at  the  of  the  said  county, 

the  day  of  18 

A.  B.,  Coroner.  (L.  S.) 

No.  335. 

COMMITMENT    OF    AN    ACCOMPLICE    TO    GIVE    EVIDENCE. 

To  the  Sheriff,  or  any  Constable  or  Marshal  of  the  county  of  ; 

and  to  the  keeper  of  the  common  jail  of  said  county : 

Whereas,  upon  the  examination  of  C.   D.,  charged  upon  inquest 
73 


570  FORMS  FOR   COlUhNCUS. 

beiore  me,  one  of  the  coroners  of  said   coiiniy,  wilh  llio  munlcr  of 
on  at  C.    II.    is  rharijod    ht-rore  nic,  on   his  own 

confession,  witij  being  nn  acroniphoo  of  iho  said  ('.  I),  in  lonimilling 
the  said  murder;  and  whereas,  the  said  CI.  II.  has  \k'vi\  hv  me  achiiil- 
ted  as  a  witness  ai^'ainst  the  said  ('.  D.  on  behalf  of  the  i)Co|i|e,  he 
being  a  material  witness  ngainsl  the  said  C.  1  >.,  in  humkI  lo  ihe  charge 
aforesaid  : 

These  are  iherefore,  Sec,  (as  No.  .*J31.) 


REC0(;\IZANCE     nV     WITNESSES. 

County  of  ss.     Be  it  remembered,  that  on   this  day  of 

IS       A.   B.,  C.   D.  and  E.   R,  of  the  town  of  in  said 

county,  personally  came  before  me,  G.  II.,  one  of  the  coroners  of  said 
county,  and  seveially  acknowledged  themselves  to  be  indebted  to  the 
people  of  the  state  of  New  York,  each  separately  in  the  .sum  of 
dollars,  to  be  made  and  levied  of  their  goods  and  chattels,  lands  and 
tenements  to  the  use  of  the  said  peo[)le,  if  default  shall  be  made  in  the 
condition  following: 

The  condition  of  this  recogiii/.ance  is  such  that  if  the  above  bonndcn 
A.  B.,  C.  D.  and  E.  F.,  shall  pcisonally  be  ami  apjjcar  at  the  next 
court  of  sessions  (or  at  the  next  court  of  oyer  and  terminer)  to  be  held 
in  and  for  the  said  county  of  to  give  evidence  on  behalf  of  the 

(<aid  })eople  against  for  feloniously  killing  and  murdering 

as  well  to  the  grand  jury,  as  the  petit  jury,  and  do  not  depart  the  said 
court,  without  leave,  then  this  recognizance  to  be  void  and  of  no  ellect, 
otherwise  to  remain  in  lull  force. 

•     Subsfribed  and  acknowledged  (Signed)  A.  B. 

the  day  and  year  first  above  written.  C.  D. 

U.  11.,  Coroner.  E.  F. 


I¥o.  Xi7. 

JIECOGMZANCK    HV    WITNESS    WITH    SURETIES. 

County  of  ss.     Be  it  remembered,  that  on  this  day  of 

18       A.  15.  and  C.   D.,  all  of  the  town  of  in  said   county, 

jiersonally  canie  before  me,  G.  II.,  one  of  the  coroners  of  the  said 
county,  and  severally  acknowledged  themselves  to  be  indebted  to  the 
peoj)Ie  of  the  state  of  New  ^'ork,  in  the  manner  and  Hjrin  folhnving, 
that  is  to  say:  the  said  A.   15.  in  the  sum  of  and  the  said  C.  D. 

in  the  auin  of  ca'li  to  be  levied  of  their  respective  g<jod8  and 


FORMS    FOR   CORONERS.  571 

chattels,  lands  .iiid  teneinonls  to  the  use  of  the   said   ]>en|ilc',  if  default 
shall  he  made  in  the  cr)nditi(jn  followini^: 

The  condition  of  the  above  recoi^nizance  is  such  that  if  the  above 
bouiidrn  A.  I),  shall  personally  be  and  appear,  Sic,  (same  as  No.  :i'U>.) 

If  the  witness  is  a  marrieil  woman  or  an  infant,  the  recognizance 
is  like  the  last,  but  neither  the  female  nor  the  infant  should  be  parties 
to  it,  cr  sign  it. 

IVo.  3:5^. 

W.VUUAXT     TO     CO.M.MIT      A      WIT.VLS.S     \VII0      Ui:rU.SE.S    TO     ENTER      INTO      .V 
RECOGNIZANCE. 

To  the  Sheriir,  or  any  Constable  or  Marshal  of  the  county  of 
and  to  the  keeper  of  the  common  jail  of  said  county  : 

Whereas,  it  ai)pears  by  the  examination  of  A.  B.,  this  day  taken  on 
oath  before  me,  one  of  the  coroners  of  the  said  county,  as  a  witness 
upon  a  charge  against  C.  D.  of  murder,  that  the  said  A.  B.  is  a 
material  witness  against  the  said  C.  D.  in  regard  to  the  said  charge  :* 
and  wherea.s,  the  said  A.  B.,  on  being  required  by  me,  the  said  coro- 
ner, to  enter  into  a  recognizance  in  the  sum  of  for  his  personal 
appearance  at  the  next  term  of  the  court  of  sessions  (or  at  the  next 
court  of  oyer  and  terminer)  to  be  held  in  and  for  the  county  of 
to  give  evidence  on  behalf  of  the  people  against  the  said  C.  D,  for  the 
oflence  aforesi.id,  did  refuse,  and  doth  still  refuse  to  enter  into  such 
recognizance  :* 

These  are  therefore,  to  command  you  forthwith  to  convey  and 
deliver  into  the  custody  of  the  keeper  of  the  common  jail  of  the 
county,  the  body  of  the  said  A.  B. ;  and  you,  the  keeper  of  the  said 
jail,  are  hereby  required  to  receive  the  said  A.  B.  into  your  custody 
in  the  said  jail,  and  him  there  safely  keep  until  he  shall  enter  into 
such  recognizance  as  aforesaid,  or  be  otherwise  discharged  according 
to  law. 

Given  under  my  hand  and  seal  at  the  18 

G.  H.,  Coroner.  (L.  8.) 


No.  339. 

WHERE      THE      WITNESS     REFUSES     TO     ENTER    INTO      RECOGNIZANCE    WITH 
SURETIES. 

Same  as  last,  omitting  part  between  the  asterisks,  and  inserting  in 
place  thereof:  "and  being  satisfied  by  due  proof  that  there  was  good 
reason  to  believe  that  the  said  A.  B.  would  not  fulfil  the  conditions  of 


572  I-OllMS    VOR  COROSVAIS. 

a  recognizance  Id  appear  ami  lesiify  as  a  witness  on  llje  trial  of  the 
said  C.  1).  unless  senniiy  was  retpiireil  for  that  purpose,  1,  tlie  said 
coroner,  did  require  the  said  A.  B.  to  enter  into  a  recognizance  with 
two  sulTicient  sureties  in  the  sum  of  conditioned  for  his  personal 

appearance  at  the  next  cou\[  of.  &c.,  to  be  held,  &c.,  to  give  evidence, 
A:c.  ;  whereupon  the  said  A.  15.  neglected  and  refused,  and  still  doth 
neglect  and  refuse  to  i-ntir  into  such  recognizance  with  such  sureties 
as  af<.>resaid : 

These  are  therefore,  <k,c.,  (as  in  last.) 

>o.  :t  10. 

8T.\TEMENT    OF    CORONKU    Tu    HOARD    OF    SUPERVISORS. 

Ante,  ^927. 

Statement  and  inventory  of  all  moneys  and  other  valuable  things 

found  with  or  upon  all  persons  on  whom  inquests  have  been  held  by 

and  before  the  undersigned,  one  of  the  coroners  in  and  for  the  county 

of  for  and  during  the  year  commencing  on  the  day   oi 

18 

IPON    WHOM    FOCND.  ARTICLES    FOUND.  DISPOSITION    THEREOF. 

A.  B.  Gold  watch,  chain  and  key,        Delivered  to  co.  treasurer, 

two  gold  finger  rings,  and  §2 
in  .specie. 

C.  D.  One  coat,  one  hat,  Delivered  to  Icpal 

one  pair  pantaloons.  representatives  of  C.  D. 

(Signed)  A.  B.,  Coroner. 

County  of  ss.     A.  B.,  one  of  the  coroners  of  the  said  county, 

being  duly  sworn,  says,  that  the  foregoing  statement  and  inventory  of 
all  the  moneys  and  other  valuable  things  found  with  or  upon  all  per- 
sons on  whom  incjuests  have  been  held,  by  and  Ix-fore  him,  within  the 
time  specified  in  such  statement  and  inventory,  and  of  the  disposition 
thereof,  is  in  all  respects  just  anil  true  to  the  best  of  his  knowledge 
and  belief,  and  that  the  moneys  and  other  articles  mentioned  in  such 
statement  and  inventory,  have  been  delivered  to  the  treasurer  of  the 
county  of  and  to  the  legal  representatives  of  the  jiersons  therein 

mentioned,  as  therein  stated. 

(Jurat,  &c.)  (Signed)  A.  B. 


FORMS  FOIl  CONSTABLES.  573 


FORMS    FOR    CONSTABLES. 


Rfo.  311. 

AITOINTMENT    OF    A     CONriTAIil.i:    TO    FILL    A    VACANCY. 
Ante,  ^082. 

Town  of  ) 

County  of  ss.  )  The  said  town  of  in  said  county,  having 

at  its  last  annual  town  meeting  failed  to  elect  the  number  of  constables 
to  which  the  said  town  is  by  law  entitled,  to  wit :  the  number  of  five 
constables;  and  in  consequence  of  such  failure,  there  being  one 
vacancy  in  said  office  of  constable  of  the  said  town,*  we,  the  under- 
signed, three  of  the  justices  of  the  peace  in  and  for  the  said  town, 
do  by  this  our  warrant  hereby  appoint  of  the  said  town,  to  fill 

the  said  vacancy,  to  hold  and  exercise  the  duties  of  the  said  office 
until  another  person  is  chosen,  or  appointed  in  his  place. 

In  witness  whereof  we  have  liereunto  set  our  hands  and  seals,  this 
day  of  18 

A.  B.  (L.  S.)  )  Justices  of  the 
C.  D.  (L.  S.)  V  Peace  of  the 
E.  F.  (L.  S.)  )    town  of 


No.  343. 

IN     CASE     OF     REMOVAL,     ETC. 

Ante,  ^983. 

Town  of  ) 

County  of  ss.  )  A  vacancy  in  the  ofilce  of  constable  of  said 

town  having  occurred  by  the  failure  of  A.  B.,  elected  thereto  at  the 
last  annual  town  meeting  in  said  town,  to  qualify  within  the  time 
prescribed  by  law  (or  "by  the  death,  removal  from  the  town,  resigna- 
tion, or  removal  from  office  of  '')  (conclude  as  Xo.  341,  from 
asterisk.) 


No.  313. 

WHERE    A    JUSTICE    OF      ANOTHER     TOWN      IS     ASSOCIATKD    TO    APrdlNT    IN 
CA3E    OF    VACANCY.  ' 

Ante,  ^983. 
After  describing  the  character  of  the  vacancy,  as  in  Xo.  3 12,  add  : 
**  and  we,  A.  B.  and  C.  D.,  being  the  only  justices  of  the  peace  of  the 


574  1- Oil  MS    VOK   CONSTAIU.HS. 

said  tmvn,  liave  associaicil  with  us  \].  \\,  a  justice  of  the  peace  of  the 
town  of  in  saiil  county,  wlucli  last  nientionctl  town  adjoins  said 

town  of  ;  ami  wi«,  being  such  justices  as  aforesaid,  Ao"  &c., 

(as  in  No.  ni'J) 

lin.  :<l  I. 

CERTiriCATH    OF    JUsiTICKfl    Ri;.MOVIVO    CONSTADLE. 

Ante,  V9'J3. 

Town  of  ) 

Comity  of  ss.  \  We.  tlie  undersii,Mied,  three  of  the  justices  of 

the  jieace  of  the  said    town,  having  upon   the  complaint  of 
against  one  of  the  constables  of  the  said  town,  for  certain  mis- 

conduct in  such  odicc,  in  not  paying  over  moneys  collected  by  him, 
duly  summonc<l  the  said  to  appear   before  us  at,  &c,,  on,  &c., 

to  show  cause  w  liy  he  should  not  be  removed  from  the  said  ofTice  ; 
and  the  said  j^nrties  appearing  and  being  fully  heard  (or  the  com- 
plainarit   appearing  and    the    said  neglecting   nnd    refusing  to 

appear)  we  do  adjudge  and  declare,  from  the  proofs  before  us,  that 
the  said  complaint  as  charged  is  estabh'shed  to  our  satisfartion ;  and 
we  do  therefore  hereby  remove  the  said  from  the  ollice  of  con- 

stable of  the  said  town ;  and  the  cause  of  the  said  removal  is,  that  on 
the  day  of  an  execution  was  issued  by  one  of  the 

justices  of  the  peace  in  said  town,  at  the  suit  of  against 

for  damages  and  costs,  and  delivered  to  said  for  execution ; 

and  that  afterwards,  to  wit :  the  said  levied  and  collected 

the  said  moneys  and  appropriated  the  same  to  his  own  use,  and  that 
judgment  has  been  recovered  against  the  said  and  his  surety 

for  the  said  nionevs.     Dated 

A.  B.  (L.  S.)  ) 

C.  I).  (L.  S.)  [  Justice,  &c. 

E.  F.  (L.  S.)  ) 

:Vo.  315. 

CKRTIFICATR    EXDORSICn    IIV     CLERK    ON    COPY    SERVED. 

I  certify  that  the  within  is  a  true  copy  of  the  instrument  in  writing, 
fded  with  me  this  day  by  the  justices  theivin  nametl,  removing  you 
from  the  ollice  of  constable  of  said  town.      Dated 

A.  ]}.,  Clerk  of  the  town  of 

To  ]].  v..  Constable  of  the  town  of 

.\o.  dUi. 

ACCKI'TANCK    OF    KKSIUN  ATION. 
AnU-,  ^!ilK). 

Town  of  ) 

County  of  as.  )  A.  li.,  constable  of  the  town  of  having 


FORMS  FOR  CONSTABLFS.  57  5 

tendered  to  us,  three  justices  of  the  said  town,  Ijis  resignation  of  con- 
stable of  said  town  ;  and  it  appearing  to  us  that  the  said  constahio 
can  no  Ioniser  dischari^fe  the  (hities  of  said  ollice  by  reason  of  ill  healthy 
^ve  do.  ill  pursuance  of  the  statutes  in  such  case,  hereby  accept  the 
resiL,n!atiuu  (»f  said  as  sucli  constable.     Dated 


IVo.  :{J7. 

NOTiri:    TO    TOWN    CMUtK     OF     ACCKI'TANCi:     OF    RE.SIGN ATIOX. 

To  A.  15.,  Esq.,  Clerk  of  the  town  of  : 

Take  notice  that  we,  three  of  ihe  justices  of  the  said   town,  have 
accepted  the  resignation  of  as  constable  of  said  town,  as  will 

appear  by  our  certificate,  hereto  annexed.     Dated 

IVo.  318. 

constable's  Do\n. 

Ante,  ^087. 

A.  B.,  chosen  (or  appointed)  constable  of  the  town  of  in  the 

county  of  and  C.  D.  and  E.  F.  as  his  sureties,  do  hereby  jointly 

and  severally  agree  to  pay  to  each  and  every  person  who  may  be 
entitled  thereto,  all  such  sums  of  money  as  the  said  constable  may 
become  liable  to  pay  on  account  of  any  execution  which  shall  be 
delivered  to  him  for  collection. 

Dated  the  day  of  18 

Executeil  in  the  presence  of  A.  B. 

G.  II.,  supervisor,  (or  I.  J.,  town  clerk.)  C.  D. 


E    F. 


No.  3  19. 


APPROVAL    TO     IJE      ENDORSED    THEREOX. 

Ante,  </.)SS. 

I  approve  of  the  sulTiciency  of  the  within  named  sureties. 
Dated  18  ^^-  H.,  Supervisor. 

(Or,  I.  J.,  Town  Clerk.) 

No.  3.'»0. 

»  RETURNS    TO    SUMMONS    PERSONALLY    SERVED. 

Ante,  <)100C. 

Personally  served  July        185     (If  copy  was  given  defendant,  add  ; 
and  copy  delivered  to  the  defendant  at  his  request.) 
Fees  A.  B.,  Constable. 


576  FORMS  FOR  CmNSTABLES. 

WIIKN    BKUVKI)    IIY    (••I'V. 

Sorveil  by  cojn-,  the  (lefcndanl  not  being  fouml,  July  1H5 

Fees  A.  B.,  Constable. 

\vin:\   sruvr.i)  i\   iihtkki.nt   maxxkr  on  sevkual  rERSONS. 

Ante,  f;100G. 

IVrsonally  served  on  X.  Y.,  one  of  the  defendants.  July         185 

and  by  copy  on  Z.  K.  185  ,  he  not  being  found,  and  S.  T.,  the 

other  defendant,  not  found,  and  I  liave  been  unable  to  ascertain  his 

last  place  of  abode  in  the  county. 

Fees  A.  IJ.,  Constable. 

IVo.  353. 

WHERE  Tiir.nr  is  \o  peu-^on  of  suitarle  age  to  leave  copy  wrrri. 

Ante,  ^lOOG. 

The  defendant  not  found,  nor  any  person  of  suitable  age  or  discre- 
tion to  be  informed  of  the  contents  of  the  within  summons,  at  his  last 
place  of  abode.     Dated 

A.  B.,  Constable. 

^o.  351. 

INVENTORY    OK    GOODS    ATTACHED. 
AlllO,  (>1011. 

Inventory  of  goods  attached  by  me,  under  and  by  virtue  of  the 
within  (or  annexed  attachment)  this  day  of  to  wit : 

One  feather  bed,  One  axe, 

"     coverlet,  "     .s|)ade, 

"     beaureu,  "     pitchfork. 

A.  B.,  Constable. 

iNo.  nr».'». 

CEUTIIH  ATi:    OK    CONSTAIIEE    Ol'    ATT\<  IIMI.NT    AND    INVE\T<1RV 

Aiito,  <>101  J. 
H^     1  certify  thai  tlu-  within  is  a  copy  of  the  attachment  issued  liy 
and  to  me  directed  and  delivered  ;  and  also  of  the  inventory  of  the 
property  seized  by  virtue  thereof,  by  me  this  day.     Dated 

Fees  A.  B.,  Consta\>le. 


FORMS  FOR  CONSTABLES.  577 


l¥o.  350. 


RKTURN     TO    ATTACH MKNT. 
Antr,  (;1011. 

I  certify  that  on  the  day  of  I   attached   and   took   into 

my  possession  and  custody,  all  the  personal  property  of  the  defendant 
to  be  found  in  my  county,  (or  certain  ))ersonal  property  of  the 
defendant)  and  that  immediately  thereu|)on  I  made  an  inventory  of 
the  property  so  attached,  which  is  endorsed  hereon,  (or  is  hereto 
annexed")  and  served  a  copy  of  the  within  attachment  and  inventory, 
duly  certified  by  me,  upon  the  within  defendant,  ])ersonally. 

Or,  if  the  defendant  is  not  found,  add  after  the  asterisk:  "and  left 
a  copy  of  the  within  attachment  and  inventory,  duly  certified  by  me, 
at  the  last  jilace  of  residence  of  the  said  defendant." 

Or,  if  he  have  no  place  of  residence,  add  after  the  asterisk  :  "and 
left  a  copy  of  the  within  attachment  and  inventory,  dulv  certified  by 
me,  with  the  person  in  whose  possession  I  found  the  said  goods 

and  chattels,  the  said  defendant  having  no  place  of  residence  in  the 
county." 

If  a  bond  is  given  to  prevent  a  removal,  add  at  the  end  of  either 
form,  as  the  case  may  be :  ''  but  said  goods  and  chattels  were  delivered 
uj)  by  me  to  the  defendant  (or  to  )  upon  receiving  the  bond 

herewith  returned." 


I¥o.  357. 

BOND    TO    PREVENT    REMOVAL    OF    GOODS    ATTACHED. 
Ante,  ^^1011,  1013. 

Know  all  men  by   these  presents,  that  we  of,  »Scc.,  are  held 

and  lamly  bound  unto  A.  B.  in  the  sum  of  dollars   (penalty  to 

be  double  the  sum  slated  in  the  aitachment  to  have  been  sworn  to  be 
due  by  the   plaintilT)   to  be   paid  to  the  said  or  to   his  certain 

attorney,  executors,  administrators,  or  assigns,  for  which  pavment, 
well  and  truly  to  be  made,  we  bind  ourselves,  our  heirs,  executors 
and  administrators,  jointly  and  severally,  firmly  by  these  presents. 
Sealed  with  our  seals,  ami  dated  the  day  of 

The  condition  of  this  obligation  is  such  that  if  certain  goods  and 

chattels,  to  wit :  one  feaiht  r  bed,  &c.,  which  have  been  seized  by  the 

above  named  A.  B.,  constable,  by  virtue  of  an  attachment  issued  by 

in    favor  of  against   the   above  bounden  shall   be 

produced  to  satisfy  any  execution  that  may  be  issued  upon  any  judg- 


578  FORMS  FOR  CONSTAHLFS. 

meiU  wliich  shall  be  obtained   by  the  plaintilV  upon   the  said  attach- 
ment within  six  months  alter  tlie  «hite   hereof,  then  this  obhgalion  to 
be  void  ;  otherwise  to  remain  in  full  force. 
Sealed  ami  dolivcretl  in  the 

presem-e  of  (•'•   '*^)  •^C- 

iNo.  :».'»•». 

OATH  TO  srur.TY. 

County  of  ss.  being  sworn,  says,  that  he  is  a  resident 

of  county,  and  a  householder  therein,  and  is  worth  the  sum  of 

over  and  above  all   debts   and  liabilities,  and   |)roperty  exempt 
from  levy  and  sale  on  execution  ;  and  further  saith  not. 
Subscribed  and  sworn  before  me 
this  day  of  18 

A.  B.,  Constable. 

No.  359. 

Ari'ROVAL     UY    CONSTABLE. 

I  approve  of  the  sufficiency  of  surety  to  the  within  bond. 

A.  B.,  Constable. 

i^o.  3G0. 

nOND    BY    CLAIMANT    TO    PLAINTIFF. 
Ante,  (/;1012,  1013. 

(Penal  part  as  last,  but  to  the  plaintiff*,  by  name,  instead  of  tlie 
constable.     The  penalty  double  the  value  of  the  property  attached.) 

Whereas,  certain  goods,  to  wit,  one  feather  bed,  Szc,  were  on  the 
day  of  seized  by  A.  B.,  constable,  by  virtue  of  an  attach- 

ment issued  by  a  justice  of  the  peace  of  the  county  of  in 

favor  of  the  above  named  and  against  the  ;  and  whereas 

the  above  bounden  claims  the  goods  as  his  property  : 

Now  therefore,  the  condition  of  this  obligation  is  such  that  if  in  a 
suit  to  be  brought  on  this  obligation  within  three  months  from  the 
date    hereof,  the  said  shall   establish  that  he  was  the  owner  of 

the  goods,  at  the  time  of  the  said  seizure  ;  and  in  case  of  his  failure 
to  do  so,  if  the  said  shall   pay  the  value  of  the  said   goods  and 

chattels  with  interest,  then  this  obligation  to  be  void  ;  otherwise  to 
remain  in  full  force. 

Sealed  anfl  delivered  in 
the  presence  of 

(This  bond  is  to  be  approved  by  the  constable  or  the  justice,  and 
the  approval  may  be  like  the  last  ;  and  the  like  affidavit  may  be 
administered.) 


FORMS  FOR  CONSTABLFS.  579 


No.  301. 

RETURN    TO    A    WAaUANT. 
Ante,  ^1021. 
I  have  arrested  the  defendant  and  have  him  in  custody  hefore  the 
court,  and  have  notified  (or  not  notified)  the  i)hiiuliir.      Dated 

Fees  A.  B.,  Constahle. 

No.  362. 

whkrk  somk  of   the  oKFr.MiANTs  not  pkuvfu. 

I  have  arrested  tlie  defendant,  X.  Y.,  and  have  him  in  custody 
before  the  court,  and  the  other  defendants,  S.  T.  and  Z.  Y.,  are  not 
found.     The  plaintilV  notified  (or  not  notified.)     Dated  18 

Fees  A.  B.,  Constable. 

I¥o.  363. 

RETURN    TO    A    VENIRE. 
Ante,  v;1025. 
I  certify  that  by  virtue  of  the  within  precept,  I   have  personally 
summoned  as  jurors  the  several  persons  named  in  the  annexed  hst. 
Dated  18 

A.  B.,  Constable. 

No.  364. 

ENDORSEMENT    OF    LEVY     ON    EXECUTION. 
Ante,  ^1036. 
Levied  by  virtue  of  the  within  execution  this  day  of 

18       on  two  cows,  three  two  year  old   heifers,  the  property  of  the 
defendant,  on  his  premises  in 

A.  B.,  Constable. 

No.  365. 

INVENTORY    WHEN     ARTICLES     ARE     NUMEROUS. 
Ante,  <)1036. 

Inventory   of  goods   and    chattels   levied    on   this  day    of 

and  taken  into  my  custody  by  virtue  of  the  annexed  execution, 
viz:  two  cows,  &c.,  &c. 

A.  B.,  Constable. 


580  voima  roil  constaulks. 

.\o.  :t«0. 

ENDORSEMENT    oN      KXK.»MT10\    I\    SICII    CAME. 
Anlo,  ^1030. 
I  have  levied  this  day  of  18       by  virtue  of  the  witiiin 

execution.  uj>on  the  poods  and  cliallcls  of  the  defendant,  mentioned 
in  the  annexed  inventory. 

A.  Ij.,  Cunslahlc. 

Ifo.  :i«7. 

RETURN    OK    AN     EXECUTION     SATISFIED. 
Ante,  <;  10 15. 
I  liave  made  the  amount  of  the  williin  execution  of  the  goods  and 
chattels  of  the  defendant.     Dated 

(Or  "  satisfied.")  A.  B.,  Constable. 

x\o.  36§. 

SATISFIED    IN     TART. 

Ante,  ^1046. 

'   I   have  made  the  sum  of  of  the  goods  and  chattels  of  the 

within  defendant,  and  can   fmd  no  other  goods  and  chattels  of  said 

defendant,  whereof  I  can  make  the  remainder  of  the  said  execution. 

£)jj^ej  A.  B.,  Constable. 

!¥o.  3G0. 

NO    TROPERTV,     OR    NI'LLA     ItONA, 

Ante,  ()\()\r,. 
No  goods  or  chattels  of  the  within  defendant  can  be  found. 

A.  B.,  Constable. 

No.  370. 

NLITIIKR    CIOODS    NOR    UODV. 

No  goods  or  chattels,  nor  the  body  of  the  within  defendant  can  be 
found. 

No.  :jri. 

Nf)  (;f)oi».s   AMI  Tin:    dkii-xiiant    arri.stki). 

No  goods  or  chattels  of  the  within  defeii(l:uit  can  be  foiUKJ,  and  for 
want  thereof  I  have  arrested  the  defendant,  and  have  conveyed  his 
body  to  the  <H;minon  jail  of  the  county. 


FORMS   FOR  CONSTABLHS.  581 

No.  372. 

CKUTiriCATi:    01"    COI'Y    OF     EXECUTION    LKI'T     WITH    J,MI-l:U. 

Ante,  (/>1013,  569. 

I  certify  that  the  within  is  a  true  copy  of  tlic  execution  under  and 

by   virtue  of  wliich  I  deHver  to   the   custody  of  the  sherilf  of   the 

county  of  at  the  jail  of  said  county,  this  day,  the  body  of  the 

within  named  defendant ;  and  that  my  fees  thereon  are  S 

RETURN    WIIKUE     (;<)OlJS    REMAIN    UNSOLD. 

Levied  on  a  lumber  wagon,  the  property  of  the  within  defendant, 
which  remains  in  my  possession  unsold,  for  want  of  bidders. 
Dated 

No.  37  I. 

WHERE    AN    APPEAL    IS    BROUGHT. 

Ante,  ^;1048. 
Proceedings  stayed  by  appeal. 

No.  375. 

OF    THE    SERVICE    OF    A    SUMMONS    UNDER     HIGHWAY    LAWS. 

Ante,  ^1074. 

Personally  served  185 

A.  B.,  Constable. 

Or,  served  by  leaving  a  copy  at  the  personal  abode  of  the  within 
named  with  a  person  thereat  of  suitable  age  and  discretion,  he 

not  being  found.  A.  B.,  Constable. 

No.  376. 

WHEN    SERVED    ON    A    CORPORATION. 
Ante,  1)1074. 
Served  on  the  within  corporation,  by  delivering  a  copy  of  the  same 
to  the  president  of  said  corporation,  personally,  this  day 

of 

No.  377. 

RETURN    TO    JUSTICe's    SU.MMONS     UNDER     LAWS     FOR    OPENING     HH:  II  WAVi<. 

Ante,  <)1076. 

1  have  summoned  the  several  jurors  whose  names  are  within  men- 


582  FORMS  FiHi  CONSTAHLHS. 

tioneil  personully,  t'xci'i)l  C\  1).,  one  of  saul  jurors,  wlio  couM  not  be 
found ;  and  thai  I  niade  service  on  said  C.  1).  by  leaving  a  notice 
that  ho  was  drawn  to  serve  as  such  juror,  and  stating  the  time  and 
phice  of  attendance,  at  his  phice  of  residence,  with  a  person  of  Suitable 
age  and  discretion. 

\o.  .17**. 

RETURN    TO    A    PRECErT    IN    CASK    OF    AN    ENCROACUMFNT. 

Auto,  V^ylOTO. 

I    have,  bv  virtue  of  the  within  i>rcccpt,  summoned   the  following 
named  persons  as  jurors,  as  1  am  within  commanded,  to  wit: 

Dated  -'^-  ^  >  Constable. 

l¥o.  ;J7J>. 

NOTICE    TO  OCCUPANT    AND    COMMISSIONERS    IN    SUCH    CASE. 
Ante,  ^1080. 
Take  notice,  thai  the  jury  to  try  the  question  of  the  alleged  encroach- 
ment of  the  fence  on  the  land  of  the  said  will  meet  at 
on,  &c.     Yours,  ^c,                                                 A.  B.,  Constable. 
To  commissioners  of  highways  of  the  town  of 
"   C.  D.,  occupant  of  the  land  on  which  is  alleged  encroachment. 

No.  3§0. 

RETURN    TO    SUMMONS    IN     CASE    OF    DKAININU    SWAMP. 
Ante,  v;1083. 
I  have  summoned  the  following  named  persons  to  serve  as  a  jury 
in  the  matter  within  named,  on  or  before  the  day  of  to  wit : 

and  I  also  gave  notice  to  the  owner  of  the  lands  through  which  the 

ditch  is  to  be  cut.  on  the  day  of  of  the  time  and  place  at 

which  such  jury  would  appear. 

No.  :isi. 

NOTICE    TO    PARTIES. 

Ante,  <)1083. 

Take  notice,  that  a  jury  will  appear  on  the  day  of  at 

o'clock,  up'Mi  the  lands  of  in   the  town  of  and  known  as 

to  determine  whether  a  ditch  or  drain  is  necessary  or   proper 

to  drain  any  of  such  lands,  and  the  damages  that  the  owners  thereof 

will  sustain,  in  consecjuence  of  the  cutting  of  such  ditch. 

A.  13.,  Constable. 


INDEX. 


ACCESSARIES, 

who  are  accessaries,       .  .  .  •  •  •  •^^'^ 

{Sec   CRIMES    COGNIZABLK    BV    COHONERS.) 

coroner's  jury  need  not  find  who  accessaries  after  the  fact,  only  those 

before 922 

ACCOMPLICES, 

(Sec    CORONERS,    ARREST    AND    EXAMINATION    OF    OFFENDERS    BY,) 

ACKNOWLEDGMENT, 

new  sherift"  to  acknowledge;  receipt  of  prisoners,  &c.,              .  .                6 

slicritr  to  acknowledge  surrender  of  prisoner,             .            .  •            341 

all  bonds  and  undertakings  to  be  proved  or  acknowledged,     .  332,  355,  7G7 

how  proved  or  acknowledged,               ....  332,  355,  7G7 

(See   BONDS    TAKEN    IN    PROCEEDINGS.) 

certificate  of  redemption  when  to  be  acknowledged,              .  .  6-6 

assignment  of  certificate  to  be  acknowledged,             .            .  •  529 

but  the  sherifl"  m.iy  execute  deed,  though  not  acknowledged,  .  529 
ACTIONS  AGAINST  CONSTABLES, 

{See   CONSTABLES,   ACTIONS    AGAINST,) 

ACTIONS  BY  CONSTABLES, 

{Sec   CONSTABLES,   ACTIONS    BY,) 

ACTIONS  AGAINST  DEPUTIES, 

{Sec    DEPUTIES,    ACTIONS    AGAINST,) 

ACTIONS  AGAINST  SHERIFFS, 

(See    SHERIFF,    ACTIONS    AGAINST,) 

ACTIONS  BY  SHERIFFS, 

{Sec    SHERIFFS,    ACTIONS    BY,) 

ADJOURNMENT  AND  POSTPONEMENT, 

prisoner,  how  kept  during  adjournment  of  hearing,      ...  77 

{Sec    BRINGING    PRISONER    BEFORE    MAGISTRATE.) 

when  plainlitr  insists  that  payment  be  made  in  specie,  if  bidders  not 

prepared,  sheritl'  shf>uld  postpone  sale,     ....  407 

if  property   not   sold   before  sundown,  must  adjourn  till  next  day,  468 

how  postponement  made  and  notice  given, 

when  on  sale  of  real  estate,      ..... 

oflaccr  has  a  reasonable  discretion  in  postponing  sale, 

postponement  of  sale  of  lands  under  decrees, 

otficer  has  a  discretion  in  adjourning  hearing  on  writ  of  inquiry, 

but  adjournment  not  to  be  beyond  return  day  of  writ, 

when  cause  adjourned,  &c.,  in  justice's  court,  defendant  under  arrest 
to  be  discharged,      ...... 

when  no  bidders  constable  to  adjourn  sale, 
AD  QUOD  DAMNUM,  {Sec  writ  or,) 


468 
4G8,  539 
474 
539 
635 
635 

1022 
1038 


584  l.NDEI. 

■icnon. 
ADVERSE  POSSESSION, 

saIi-  of  l;in(l9  on  esoculion  hcKl  aJvorscly  valUl,  •  483 

ADVERTISEMENT, 

{See  NOTICE  or  bale.) 
AFFIDAVIT, 

priKif  of  M'nico  of  prooow,  not  rctuni.ibic,  must  \>c  by,         .  .  89 

rclunj  to  proioM  whon  to  bo  vcrino*!  by,  .  31t,  IbJ,  '2»'.\  361,  Gil,  C61,  766, 1140 

of  Ncrvico  of  citation  to  tftkr  i>rot)f  of  will  must  be  by,  .      3'J,  766 

lo  halK'iw  corpus  when  party  is  sick,  .  .39,011 

of  wrvicc  of  process  on  coucealeil  ikfendant,  31),  UHW,  361 

to  i)reci'pt  for  summoning  jury  in  plank  road  case,  3'.»,  CCl 

to  warrant  for  (leslruttinn  of  liquor,      ...  HW 

of  subiKcna  may  be  by  afliilavit,  but  certificate  suflicient,  1H2 

but  if  party  is  concealed,  must  be  by  atlidavit,  •  1^*^^ 

where  summons  and  complaint  served  by  slieriff  out  of  his  county, 

return  to  be  by,       ....••  •  ^'^ 

affidavits  charging  offence,  to  be  furnished  governor  on  application 

lor  requisition,         .  .  .  •  o«,  im,  ou 

before  whom  taken,       .....••  <" 

how  authenticated  to  governor,  .  .  .  •  •  84 

governor  to  certify  that  they  are  authentic,  &c.,  .  .*  .  86 

athdavit  to  be  atUiched  to  reiiuisiiion,  ....  85 

keeper  of  jail  to  verify  account  of  materials  ftiruishcd  for  employ- 
ment of  disorderly  persons,  .  .  .  .  •  238 
accounts  of  sheriffs  for  transporting  prisoners,  how  and  before  whom 

verified, 268 

witness  arrested,  before  released,  to  make  affidavit,     .  .  300 

may  be  before  the  sheriff  or  constable  arresting,  .  .        27,  300,  lOlG 

when  order  of  arrest  is  made,  affidavit  and  copies  to  be  delivered  to 

sheriff, 329 

on  arrest  copy  to  be  delivered  defendant,  ....  330 

when  arrest  is  under  3  sub.  V;179  of  Code,   what  affidavit  should 

show 328,344 

within  ten  days  original,  with  return,  to  be  filed  with  county  clerk,  .  346 

when  delivery  of  iK-rsonal  property  claimed,  affidavit  to  be  made,      .  863 

by  whom  made  and  what  to  conUin,  ....  368 

endorsement  of  order  to  be  made  for  delivery  of  property,  .  364 

aflidavil  by  claimant  to  proiK-rty,  .  .  .  .  •  801 

hheriir  should  require  .sureties  to  undertakings  on   arrest,  and  foi: 

delivery  of  personal  i)roiM.'rty  to  justify,     .  .  332,365,301 

sureties  to  bonds  to  sherilf  under  altachnieiits  to  justify,     .    374,  380,  383,  1013 
consUible  should  re(iuire  surety  to  bonds  on  attachment  to  property,  1018 

Bberiffs  and  consUbles  may  lidminister  oaths  in  such  cases,     .  27,  332,  766 

when  sureties  of  one  arrested  on  ne  exeat  wish  to  surrender,  copies 

of  bond  to  be  verified  by  sheriff,  ....  401 

AMignment  of  judgments,  &c.,  to   bo   verified  when  one  seeks  to 

redeem, 618,519 

affidavit  of  amount  due  to  bo  m.-nh',  ....    61H,  619 

when  ina'le  by  a^ent  what  to  stale,      .....     618,  619 

imprisoned  debtor  on  justice's  execution  to  be  discharged  ou  making,  506 

what  to  contain,  .......  606 

when  and  wh.ru  to  Ih?  HK-d,       .....  606 

officer  to  release  pri.wner  without  inquiry  into  its  truth,  606 


INDEX.  585 


AFFIDAVIT,  (continue<l.) 

wlifii  ccrtilic'cl,  to  be  cviiloiico,  deftjiico,  dec,     ....  56<J 

ollicor  will)  HclLs  distress  of  iii;uiiiii;ilo  property  flrst  to  bo  furnished,  .  716 
what  to  contain,              .            .            .            .     ,       .                         .    70'J,  715 

oflicer  who  sells  distress  in  other  cases  to  make,  720 

hi  action  on  sherill's  bond,  plea  of  surety  to  be  verified,  when,  871 
coroner  to  make,  of  disposition  of  property  found  on  body,  before 

supervisors  audit  accounts,             .....  028 

correctness   of  charjjes  ajjainst  county  to  be  verified,            .  1130 

AFFRAYS  AND  RIOTS, 

duty  of  sheritls,  constables,  coroners  and  marshals  to  prevent,  .        25,  48 

if  an  affray  in  a  dwelling,  may  break  open  doors  to  suppress  it,  48 
and  if  one  eng.iyed  in  an  afiVay  flee  into  a  house,  on  (Vesh  jiursuit, 

otlicer  may  break  in  to  arrest,         .....  48 

but  should  only  be  done  in  .-ig^ravated  cxses,               ...  48 

officer  no  right  to  arrest  after  allVay  is  over,  without  warrant,            .  48 

unless  a  felony  lias  been  committed,     .....  48 

officer  may  demand  the  assistance  of  all  other  persons,  .  .  48 
and  sheritls  and  mayor  of  cities,  may  call  out  military,  .  48,  115'J 
when  sheriff  or  mayor  notified  of  threatened  destruction  of  property, 

bound  to  prevent  it,             .....             •  1168 
liable  for  damages  if  they  neglect  or  refuse,     .                                     .1158 

AGENT, 

governor  may  appoint  agent  to  arrest  fugitive,  &c.,     ...  8G 

(iS'.C    FUaiTlVE    KROM    JUSTICE.) 

bail  may  appoint  to  arrest  principal,     .....  13.3 

his  powers,          ........  133 

though  he  be  an  ofliccr,  he  acts  as  agent,  and  if  he  takca  security,  will 

not  be  deemed  taken  colore  officii,             ....  133 

how  appointed,               .            .            .            .            •            •            •  134 

(^SCC   BAIL,    BIGHTS    OP,) 

when  service  of  summons,  &c.,  may  be  made  on  agent,  .     350,  1004,  11C5 

(Sec    SUMMONS,    SERVICE    OF,) 

ii\  replevin,  property  to  be  taken  if  in  possession  of  defendant  or 

agent,           ........  357 

papers  to  be  served  on  agent  when,       .....  357 

{Sec   CLAIM    AND    DELIVERY    OF    PERSONAL    PROPERTY.) 

when  agent  may  give  bond  under  proceedings  by  attachment,            .  370 

on  claim  of  property  in  such  case,  when  to  be  delivered  to  agent,  .  374 
if  attachment  discharged,  property  to  be  delivered  to  defendant  or 

agent,            ........  378 

when  execution  issued  before  judgment  docketed,  sheriff  may  bold  it 

as  special  agent,      .......  404 

in  the  service  of  an  execution  sheriff  may  be  restrained  and  controlled 

as  special  agent,      .......  407 

attorney  may  make  deputy  special  agent,  and  thereby  release  sheriff,  407 

agent,  when  to  have  lien  on  ships,  &c.,            ....  456 

a  deputy  who  sells  land,  may  authorize  one  as  his  agent  to  receive 

the  money  on  redemption,  ......  616 

when  agent  may  make  affidavit  of  amount  due  on  judgment,  &c.,  to 

redeem,        ........    518,619 

•when  canal  .igent  may  be  removed  from  canal  premises,  &c.,   .  663 

when  agent  may  claim  WTCcked  property,         ....  726 

75 


586 


INDEX. 


c  on  civil  pro- 

292, 306,  468 

292 

292,  306,  458 


292 
292 


AGENT,  (omdHur.l.) 

H  iu'ii  ;ui  iiiiiocont  n^nt  ciuployed  to  commit  murder,  employer  prin- 
cipal ill  flrst  iK'gn'o,  ......  908 

but  if  .'ig«Mit  is  nwixTv  of  juid  rcsponsiblo  fur  Jicl,  lie  is  principal,  908 

AIDING  TUE  SUEIUFF,  &. ., 

(^.Vf  rowK.n  OK  tiik  county.) 

ALIEN, 

c.-uuiot  hold  the  oflice  of  sbcritf,  .....  2 

nor  under  sheriff  nor  deputy,     ......  11 

uor  coroner,        .  .  .  .  .  .  .  882 

nor  consUiblc,      ........  979 

but  may  be  turnkey  or  jailer,  .....        11,20 

Ciuiiiot  be  a  juror,  .......  171 

nor  serve  writ  of  habeas  corpus,  .....  COO 

AMBASSADOR, 

person  and  goods  of,  exempt  from   arrest  or  scizui 
cess,  ..... 

penalty  therefor,  .... 

same  i>rivilege  extends  to  their  serv.ants, 

but  not  where  debt  was  contracted  before  entering  into  the  minister's 
service,        ........ 

and  servants  names  must  be  entered  with  secretary  of  state,  &c., 

APPEAL, 

{See    STAY    OP    PROCEEDINGS.) 

APPEAL,  COURT  OF, 

{Sec    COURTS    or    RECORD.) 

APPOINTMENTS, 

governor  to  appoint  to  fill  vacancy  in  office  of  sheriff^            .            .  12 

coroner,            .  89 

agent  to  receive  fugitive  from  justice,      .            .  82-91 
sheriff  may  appoint  under  sheriff,  general  and  special  deputies  and 

jailers,          .            .            .            .            .            .        •    .            .  13,  16 

coroners  also,  when  they  execute  duties  of  office  of  sheriff,     .  893 
magistrate  may  appoint  person  to  execute  warrant  against  a  disguised 

person,        ........  109 

when  blieriir  party  to  suit,  elisors  to  bo  appointed,      .  .  -2,  952 

when  court  may  appoint  person  to  complete  service  of  process,          .  531 
when  county  judge  to  designate  coroner  to  discharge  duties  of 

sheriff,         .            .            .            .            .            .            .            .  907  976 

when  may  appoint  another  person,        .....  971-973 

when  constable  may  be  ajipointed  by  justices,            .            .            .  982-984 

when  justice  may  ai)poiuL  person  to  execute  process,              .            .  995 

when  county  judge  to  appoint  crier,     .....  1103 

APPRAISAL  AND  APPRAISERS, 

(.V*C    ATTACUMENTS    AGAINST    FOREIGN  CORPORATIONS,  ETC.) 

{Sec   SALE    OP    REAL    ESTATE.) 

{Sec    DISTRAINING    INANIMATE    PROPERTY.) 

{See  WRECKS.) 

APPRENTICES, 

wlnii  may  br  cr>niniitl<  il  and  how  confined,      ....  248 

ARREST  AND  DAlL  UNDKR  ('ODE, 

umbr  what  proccs.s  i)arly  may  be  arrested,  200,  .320,  SOC 

cannot  be  arrested  williout  order,         .....    2'JO,  327 


INDEX. 


587 


ARREST  AND  BAIL  UNDER  CODE,  (continued.) 

by  wlioin  granted,  .  .  .  •  • 

when  order  to  be  made,  .... 

wliat  order  to  reciuire,      .  .  .  .  • 

aflidavit,  order  and  eopies  to  be  delivered  to  sherifT,     , 

order  if  not  void  on  its  face,  to  be  executed,     . 

arrest,  wlien  and  where,  and  liow  made, 

sherilf  to  deliver  parly  copy  order  and  aflidavit, 

if  not  delivered,  court  will  allow  amendment,  . 

but  if  the  return  show  due  service,  it  will  be  conclusive, 

if  defendant  will  not  give  bail,  &c.,  to  be  forthwith  committe 

to  be  detained  until  he  gives  bail,  &c.,  but  may  be  let  to  lim 

may  be  discharged  at  any  time  before  execution,  on  giving  b 

condition  of  undertaking,  .... 

to  bo  prepared  by  shcritt",  .... 

who  may  be  bail  and  who  not, 

what  bail  to  be  worth,     ..... 

their  residence  and  occupation  to  be  given, 

to  acknowledge  and  justify,         .  .  .  - 

to  return  order  by  return  day,  with  return  endorsed  and 

copy  undertaking,     ..... 
within  ten  days  plaintiff  may  serve  notice  that  he  excepts  to 
sheriff  or  defendant  may  give  notice  that  sureties  will  justify 
before  whom  and  when  to  justify, 
if  new  bail  is  given,  new  undertaking  to  be  executed, 
bail  how  to  justify,  ..... 

if  bail  fail  to  justify,  judge  may  grant  further  time,  . 
in  what  cases  bail  not  liable,  .... 
when  may  be  exonerated,  .... 

when  and  how  may  surrender  principal, 
proceedings  thereon,        ..... 

{See   BAIL,   RIGHTS    OF,) 

when  sheriff  becomes  liable  as  bail, 

his  rights  in  such  case,     ..... 

when  and  where  undertaking  to  be  filed, 

sheritr  need  not  make  arrest  before  taking  bond, 

may  discharge  defendant  until  return  day,  but  it  will  be  esc 

does  so  after,  ..... 

bail  may  be  taken  hi  different  form  from  that  prescribed,  if 

the  plaintiff,  ...... 

instead  of  bail,  defendant  may  make  deposit  of  amoimt, 
sheriff  to  give  defendant  certificate  thereof, 
within  four  days  must  deposit  same  with  clerk, 
clerk  to  give  two  certificates,     .... 

one  to  be  given  defendant,  and  other  plaintiff, 
when  bail  may  be  substituted  for  deposit, 
affidavits  on  arrest,  when  and  where  to  be  filed, 
when  defendant  to  be  discharged, 
ARREST  AND  EXAMINATION  OF  OFFENDERS  BY  CORONER, 

(See    CORONERS,    ARREST,    ETC.,    BY,) 

ARREST  m  CIVIL   CASES, 

(See  PROCESS,  executio.n  of  in  civil  cases.) 
under  what  process  may  arrest, 


ts, 

il,  &c., 
328, 


certified 


bail, 


200, 


327,  806 

327 

328 

329 

330 

330 

330 

330 

330, 337 

331 

331 

332 

332,  344 

332 

332,  333 

332,  333 

332,  768 

3.32,  709 

337 
3.37 
338 
3.38 
338 
3.38 
338 
339 
340 
341 
341,  342 


343, 
42, 
;ape  if  he 
given  to 


25,  835 
343 

38,  769 
334 

334 

335 
336 
336 
336 
336 
336 
336 
42,  345 
346 


290,  326 


588 


INDEX. 


ARREST  IN  CIVIL  CASES,  {continued.) 

who  I'Xiiupt  fri'Ui,  ..... 

Aiiih.'vvH.idoni  Aixl  thfir  M>rvatit«, 

Itcn.ilty  for  am'stlnp,        .... 

cotwuU,      ...... 

nonromniiMioncd  odlccn*,  noMion*  ."xiid  innriiuM, 
ufflrtTs  .-ujtl  M>l(liiTs  cf  militia,  in  stTvico  of  U.  8., 
wln'n  doMicnt  in.ay  be  flisjh.irf^-d  on  h.-xlnas  corpus, 
wn.-itom  .uhI  iiu'inhon*  of  coiigri'H.s,  wluii  i'Xi'iii|it, 
nu'ml»cr»,  &c.,  of  K-j^islalurc,  wlu-ii, 
foin.ilcs,      ...... 

officers  of  court."*,  during  sitting  thereof, 
I).irties  to  Kuil-s,  when,       .... 

witness,  and  when  and  how  discharged, 
militi.i  on  parade  d.-iy,      .... 

Tofers  on  election  day,      .... 

ofticer  and  pri.soiier  pa.s.sing  througlj  otlier  counties, 
a  prisoner  in  custody  of  the  Liw, 

(Sec    CUSTODY    OF    TIIE    LAW.) 

canal  oflicers  for  oflicial  .icts, 
one  discharged  by  re;ison  of  temporary  exemption,  when  may  be 

arrested  on  same  process,     .... 
when  arrest  must  be  made,  .... 

when  ofiicer  to  show  authority, 
how  made,  what  is  an  arrest  and  what  not, 
where  may  be  made,        ..... 
when  may  cuter  dwelling,  .... 

when  not,  ..... 

what  is  a  <lwelling, 
w  hen  doors  may  be  broken  open,  .... 

{See    DOORS,    DREAKINO    TO    ARREST    IN    CIVIL    CASES.) 

on  arrest,  defcnd.uit  to  be  committed  forthwith  to  jail, 

must  be  held  on  subsequent  process,     .... 

olHcer  not  to  charge  prisoner  for  footl  or  drink,  provided  for  either 

nor  receive  any  thing  for  keeping  prisoner  out  of  jail, 

nor  for  wailing  to  find  bail,        ..... 

nor  for  any  other  purpose,  ..... 

{Sec   ARREST   AND   BAIL    CNDER   tOnE.) 

{See    NE    EXEAT.) 

{See   CAPIAS    AD    SATIsrACIENDUW.) 

{Sec    ESCAI'ES.) 

(iSfC    BAIL,    RhillTS    or,) 

{See    NON-IMPKISONMEN'T    ACT,    ARREST    U.NDER,) 

{See    IMIOCEEDIMJS    SLPPLKME.NTARV    TO    EXKCfTION.) 

{SfC   CONSTABLE,    BKRVIcE    OP    WAHHANT8.) 

{Sre    CONSTABLE,    JLSTlCt'a    EXECUTIONS.) 

ARRKST  I.\  CRIMINAL  CASES; 
Without  Wahuant: 

all  itersons  liable  to  arrest  for  crime, 

sherlllii,  onsU'ibhH,  conmerB,  &c.,  conservators  of  the  pracr, 

their  duly  to  suppres.K  aUr-iyH  .ind  arrest  breaki-rs  of  jtcice, 

{Srr    APPKAVB    AND   RIOTS.) 

when  brcAcb  of  i>oacv  (  ouimitted  in  their  presence,  may  arrest, 


201-302 
'2'yl,  300 

OfJO 

•2'Ji 
294 

295 
296 

207,  300 
208 
209 

300,  300 

301 

34,  302 

288,  303 
304 

306,300 

807 

308 

309 

310 

311 

311,  319 

312 

312-318 

320,  321 

322 
323 
324 
324 
324 
324 


GO 

25,  48 

26 

48 


INDEX. 


589 


ARREST  IX  CRIMINAL  CASES,  {runtinucd.) 

if  brcacli  of  peace  nu'ri-ly,  jirre.st  to  lie  ni.-Kle  in  ro,-u<oiia))]e  lime, 

if  -A  rioter  lly  into  :i  Iiou.se,  oUicer  on  fresli  pursuit  m.iy  bnak  rloor« 

to  iirresl  liiin,  ...... 

but  tliis  siioulil  only  be  done  in  extreme  ca-ses, 
,  cannot  arrest  for  atlVay  not  in  view,  after  it  is  over, 

but  where  one  has  thre.itened  death,  and  complaint  is  mad<',  may, 
wlicn  a  ft'lony  is  conmiitted  In  view,  every  one  required  to  arrest, 
and    any   one    may    arrest,   whether    time    to   obtain    warrant  or 

not. 48,49.61,0.3,9.32 

probable  suspicion  of  who  offender  is,  will  justify  officer, 

even  though  no  felony  was  committed,  .... 

if  one  charge  another  with  felony  and  desire  officer  to  anest,  will 

justify  arrest,  ....... 

if  false,  party  m.iking  charge  li.ible,  and  not  officer,     . 

persons  found  going  about  at  night,  &c.,  may  l)c  arrested, 

when  officer  excused,  though  no  felony  committed, 

one  escaping  from  jail  m.ay  be  retaken  without  warr.mt, 

officer  resisted,  must  arrest  resisters,      .  .  .  .  • 

power  of  justice  to  order  arrest  verbally,  .... 

officers  presiding  at  elections  may  order  one  removed  from  room 

verbally,        ......•• 

when  party  found  with  stolen  goods  on  search  warrant,  to  be  arrested, 
when  disturbers  of  religious  meetings,  .... 

{Sec    DISTURBANCE    OV    BELIOIOCS    MEETINfiS.) 

when  beggars  and  vagrants,    ...... 

{Sec    BEGGARS    AND    VAl^KANTS.) 

when  idle  and  truant  children.  .....  1069 

when  hawkers  and  pedlars,         .....  1070-1073 


48 

48 
48 
48 
48 
40,  9.32 


49 
49 

49 
49 
49 
49 
50,  200 
51 


120 
80 
93 

104-110 


when  to  arrest  intoxicated  person.         ..... 

{Sec    SPIRITUOUS    LiaUORS.) 

if  arrest  made  without  warrant,  officer  may  release  party,  if  innocent, 
otherwise  must  take  him  before  m.igistrate,      .... 

in  all  other  cases  warrant  necessary  to  authorize  arrest, 
in  general,  court  will  not  imiuire  how  one  is  arrested, 
if  suilicient  cause,  will  hold  him,  though  arrest  irregular, 
and  leave  him  to  bis  remedy  against  the  officer. 
Under  Warrants  : 
1.   Of  the  warrant. 
by  whom  issued,  ...... 

form  and  contents,  ...... 

should  show  where  and  when  i.s.sued,     .... 

may  be  in  name  of  magistrate  or  of  the  people, 

must  be  under  hand  of  magistrate,  but  need  not  have  a  seal, 

must  not  be  general,        ...... 

if  known,  name  of  p.irty  must  be  stated  and  not  left  in  blank, 

if  name  erroneous,  will  not  justify  .arrest, 

if  name  unknown,  must  describe  person, 

should  recite  accusation.  ..... 

and  nature  of  olfence  be  clearly  specified, 

if  for  feloniously  taking  personal  property,  to  state  value, 

if  not  stated,  will  be  deemed  petit  larceny, 

must  not  be  left  in  blank.  ..... 


1142 

69 
CO,  70 
53 
53 
53 
53 


54 
54,  55,  56,  61 
55 
55 
55 
5.5 
55 
55 
6.5 
65 
55.56 
5.5 
65 
55 


590 


INDEX. 


ARREST  IN  CRIMINAL   CASES.  (<..n/inu^,/.) 

if  ntiuo  of  ortU-or  or  parly  Ik-  <111»-<I  in  aflrr  »s8iu-<l,  i(r»co!i.s  void, 
before  whom  iiiadi-  rctdrnaMi',      ..... 

niuft  appi-ar  rcf;ular  on  ita  faro,    ...... 

but  inunatorial  if  it  hnvo  voidable  ilcfccta,  .... 

must  B|>|H>ar  that  ma^i^l^ato  had  atitiiority  to  isHUo  aiinllar  warrants, 

and  contain  no  intimation  of  want  of  jiiriHdiction, 

if  the  Mibjoct  matti-r  i.t  ^itliinjtirisdiction  of  maj^lstrato,  and  dcKJS  not 

show  a  want  of  jurisdiction  of  person  or  placo,  it  will  be  good,    . 
whotluT  court  or  ollicor  bo  of  goneral  or  limited  jurisdiction,  . 
or  whftluT  the  ollicer  be  one  dc  jure  or  de  Jacto,  if  he  claims  by  right, 
if  pruco.vs  i»  regular  on  it.s  face,  not  material  that  ollicer  is  awaro  of 

facts  rendering  it  void,  ..... 

though  it  will  protect  hlin.  yet  he  i.s  not  bound  to  execute  it,    . 
or  he  may  stop  it.s  execution  when  he  learns  the  fact,   . 
if  void  on  its  face,  will  boa  trcspo-s.ser  if  he  executes  it, 
no  ollicer  cjin  execute  warrant  unless  directed  to  him, 
if  directed  to  the  sherill'  he  may  execute  it,  or  his  under  shcrilT,  &c. 
or  he  or  under  sherill"  may  deputise  one  to  serve, 
if  to   the  coroners,  constables  or  marshals,  ttc,  generally,  any  one  o 

them  may  serve,        ...... 

but  if  to  a  constable  or  marshal  of  a  particular  town  or  city,  no  one 

out  of  such  town,  &c.,  can  serve,      .... 
constables  must  act  in  person  and  not  by  deputy, 
80  of  coroners,  except  when  they  execute  the  oflicc  of  sherlfl'", 
but  others  may  lawfully  assist,      ..... 
the  warrant  is  in  force  during  term  of  oflicc  of  magistrate, 
but  should  be  executed  forthwith,  .... 

if  not  void  on  its  face,  will  protect  all  in  its  due  execution, 
but  not  in  any  abuse  of  the  party  or  his  rights,  . 
where  oflicer  combines  with  complainant  to  extort,  he  loses  protection 

of  the  warrant,  ...... 

0  justice  has  no  power  to  direct  execution  but  in  regular  manner, 

if  the  ollicer  obeys  him,  btith  are  trespassers,     . 

the  execution  of  void  process ;  or  process  ia  an  irregular  manner 

renders  oflicer  a  trespa.sscr,  ..... 
and  every  one  may  resist  him,      ..... 
and  if  the  oflicer  is  killed,  will  not  be  murder,  . 
unless  the  parly  interfering,  wantonly  strikes,    . 
and  if  the  officer  kills  the  party,  his  warrant  will  aflord  him  no  pro 

tection,  ....... 

•J.   (}f  I  he  arrest. 

oflicer  should  be  cautious  to  arrest  the  proper  person. 
If  not  correctly  nam>'d  or  described,  should  not  execute  warrant, 
for  it  will  not  justify  arrest  even  of  the  proper  person, 
unlesa  in  co-se  of  a  vagrant,  ..... 

arrest  m.iy  \hi  mode  anywhere,     ..... 

but  if  laaued  by  a  justice  or  alderman,  cannot  bo  executed  out  o 

county,  unless  emloniod,         ..... 
how  endopK-d,  .      , 

when  doors  may  be  broken  open  to  arrest, 

{iSeC   IlooBi,    BRKAKINO    OK,    TO    inREHT    IN    CIIIMI.SAI.   CASKS.) 

when  arrest  may  be  made,  ..... 

when  oflicer  bound  to  show  aothority,     .... 
a  regular  otnccr  acting  in  his  district  is  not, 


&5 
60 
M 
f>G 
M 

66 
6(3 
60 

66 
60 
284 
63,  65,  60 
57 
57 
57 

57,  953 

57 
57 
57 
57 
58 
58 
59 
59 

59 
59 
59 

53 
63 
63 
53 

53 

f.l 

r.i 

CI 

109 

02 

02 

02 

03,  04 

66 
05 
65 


INDEX. 


591 


copy, 


ARREST  IN  CRIMINAL  CASES,  (conlimutd.) 

but  a  .special  deputy  muHt,  ... 

but  parly  ouj^ht  to  be  notided,  &-c.., 

and  every  odicor,  on  rei|Ue.it,  without  feo,  miLst  deliver 

re(ii.«ittl  to  do  HO  in  declared  a  mi.ideineanor, 

wliat  will  con.stituto  an  arrest,      ... 

what  Corce  may  bo  used,    .... 

power  of  otlicer  over  pri.soner  after  arrest, 

if  he  e.scape.s,  mu.st  bo  retaken,     . 

can  be  taken  out  of  his  cu.stody  only  on  habeas  corpus, 

how  arrested  on  «ivil  process  when  in  custody, 

how  arrested  on  subse(iuent  criminal  process,     , 

duty  of  otlicer  when  arrest  is  made, 

{Sec   BAIL    IN    CKIMINAI.    CASKi.) 

(iScC    BAIL,    RKJIITS    Of,) 

(iSSfC    BA.STAHDS.) 

(^SeC    BKGGAR9    AND    VAGRANTfl.) 

(See   BENCH    WARRANTS.) 

(See  BRINGING    PRISONKR    BEFORE    M AiilSTRATE.) 

(S:e   CORONER,    arrest   and    examination    ok    OITENDEBS    EY,) 

(See  COURTS  .martial.) 

(See   DISORDERLY    PER.SOSS.) 

(Sec   disturbance    of    RELIGIOUS    MEETINGS.) 

(See   ELECTIONS.) 

(See   FUGITIVE    FROM   JD8TICE.) 

(See   GAMING.) 

(See    PSACE    WARRANTS.) 

(See   SEARCH    WARRANTS.) 

(See  SPIRITUOUS   LiaUORS.) 

ASSIGNMENT, 

by  old  to  new  sheriff, 

when  to  be  made,  .... 

who  to  execute  in  case  of  vacancy, 

effect  of  failure  to  assign  prisoner  on  limits 

when  assignment  of  goods  void  as  to  execution  in  sheriff's  hands, 

fraudulent  assignment  void  as  to  creditors, 

assignment  of  execution  to  sheritf  void,  when, 

assignment  of  judgments  and  mortgages. to  be 
seeking  to  redeem, 

how  verified,  .... 

may  be  made  by  executor,  &c.,    . 

assignment  of  certificate  of  sale  to  be  acknowledged,  &c., 

but  sheriff  may  give  deed,  though  not  acknowledged,  &C., 

order  to  prosecute  bond  on  attachment  operates  as  assignment, 

who  entitled  to  assignment  of  bond  for  liberties, 

by  whom  executed  during  vacancy  in  office  of  sheriff,    , 

to  be  executed  ia  presence  of  one  or  more  witnesses,     . 

sheriff  may  execute  assignment  out  of  his  county, 

acceptance  of  a.ssignment  bars  action,  when, 

if  party  refuse  to  take  assignment,  but  sue  sheriff,  proceedings  will  be 
stayed,  ...... 

mayor  of  New  York  to  assign  senate  districts  to  coroners, 
ATTACHMENT, 
Against  Foreign  Corporations,  Non-Resident,  Abicondino,  or  Concealed 

when  attachment  may  issue,       ...  ... 


presented  by  assignee 


41< 


f>5 
05 
05 
05 
W 
07 
OS 
08 
OS 
08 
08 
Oi* 


6 

G 

0 

7 

408 

452 

804 


518,  519 

518,  519 

518 

529 

529 

.799 

820 

770,  820 

820 

288 

822 

824 
891 

Def'ts. 
8G4 


502 


IJfDBX. 


ATTACIIMEN'T.  (f^yntinurd.) 

by  wlioni  f:rni>to<l  and  Its  contents 

sluTiir  shouli!  mark  tiiuo  of  Its  rwcipt, 

procoodinga  on  nnd  what  may  W  otlnclu<l, 

profHTty  ii))ip|K<d  not  liftblo,  whi-n, 

attachment  not  a  lion  till  sorrod, 

bow  property  attached,     .... 

how  rights  in  action  attJichcd, 

inventory  nnd  apprnisal,  and  be  made  nnd  (lied, 

proceedings  when?  property  l.s  i)cri.shnl)le, 

when  chiinied  by  another, 

shei 111"  to  collect  debts,  »fcc, 

actions  therefor,  when  and  how  brouglit, 

when  party  may  bring,      .... 

undertaliinp  to  be  given  sherin'    . 

judjrmcnt,  how  paid  by  sherifT,     . 

when  judgment  is  against  i)laintifr, 

when  attachment  may  be  di.schargcd, 

when  executed  or  discharged  to  be  returned, 
AciiNST  Absconding,  Concealed,  or  Non-Resident  DEFENDANTa  dkdcr  R 

by  whom  warrant  issued,  &c., 

proceedings  sarao  as  under  attachments  against  foreign  corporations 
&c.,      ....... 

on  appointment  of  trustees  what  to  be  done, 
AoAiNaT  Foreign  CoRroRATiONS  cnder  R.  S. 

by  whom  issued,     ...... 

proceedings  thereon,  ..... 

how  actions  to  be  brought,  .... 

what  may  be  attached,       ..... 

liow  executed  ui>on  rights  of  action, 

duty  of  debtor  to  defendant,  &c.,  when  applied  to  by  .^herifT, 

when  such  porson  refu.scs,  statement  how  proceeded  against, 

when  property  perishable,  &.C.,     .... 

bond.s  given  in  proceeding,  .... 

lien  of  judgment  dates  from  service  of  attachment, 

liow  i>aid,     ....... 

ATTACHMENT  AGAINST  SHIPS,  fee,     . 

(S'C   SIIIP.S,    WARRANTS    ON    DEMANDS    AGAINST,) 

ATTACHMENT  FOR  CONTEMPT, 

what  is,        .....  . 

may  be  criminal  in  its  character,  and  executed  as  such 
but  (ihould  so  appear  on  its  face, 

and  on  commitment,  in  such  case,  olTonco  must  be  set  forth 
.        when  court  may  punish  summarily, 

when  attachment  is  to  enforce  civil  remedy, 

Id  what  vasrn  may  be  issued, 

proceedings  when  not  committed  in  presence  of  court 

when  fur  iion- payment  of  money, 

when  against  a  witnexs  for  disobeying  subpa>na, 

(.Si-c    WITNKHH,    (  O.MI'EI.MNU    ATTENDANCE    OK,) 

in  other  caneti,  nllidavits  to  bo  served,  &.C., 

how  ftheritr  in  default  fur  not  returning  process  may  bo  attached, 

notice  to  \x'  Sertoli  to  uhow  cause, 

how  wrved,  ..... 

If  he  has  excu*c,  should  appear  on  motion  day. 


3(V) 
:J06 

ao7 

^70 

ac8 
:JG9 
a-i 

372 
.•173 
371 
376 
376 
376 
376 
370 
377 
378 
379 
S. 

380 

361,  380 
880 

881 
382 
883 
384 
385 
386 
387 
388 
389 
390 
390 


776 
773 
773,  774 
770 
777 
778 

77G 
778,  780 
780 
781 
782 


INDEX. 


593 


ATTACIIMKNT  Foil  CONTEMPT,  (continued.) 

what  u  valid  cxcuno,  .,,... 

ill  (Ufnult,  attachment  to  issue,     ..... 

when  allowed  by  spceial  order,  certiflcato  of  elerk  to  bo  cndor8C<l, 

court  to  diroet  punalfy  of  lioiid  to  bo  taken  on  arrest,    . 

order  to  be  endorsed  anil  .si;iiied  by  presiding  judge, 

to  whom  attacliment  to  In;  directed,  .... 

not  criminal  process  in  sucli  case,  .... 

to  bo  served  like  civil  process,     ..... 

if  no  sum  endorsed,  defendant  not  to  bo  discharged  but  by  order  of 

court,    ....... 

sickness,  excuse  for  not  bringing  up  party, 

not  necessary  to  confine  jjrisoner,  except,  &-c.,    . 

jurisdiction  once  aciiuircd,  continues  during  examination, 

if  jtarty  already  in  custody  on  other  process,  may  bo  brought  up  on 

habeas  corpus,  ..... 

if  sum  endorsed,  defendant  to  bo  discharged  on  giving  bond, 
to  whom  given  and  form,  ..... 
odicer  to  prepare  tlio  bond,  :  .  .  . 

liis  duty  to  see  tliat  surety  are  sufficient, 
attachment  to  be  executed  and  returned  by  return  day, 
bond  to  be  returned  with  it,  .... 

to  bo  sent  attorney  or  clerk  of  court, 
if  ofliccr  docs  not  return  writ,  may  be  attached,  &c.,     . 
what  allowance  of  writ  in  such  case  to  contain,  . 
oniccr  so  in  default,  not  to  be  discharged  on  bail, 
but  irregular  to  issue  attachment  before  adjournment  of  sittings  on 

return  day,      ...... 

if  no  bond  given  on  first  attachment,  defendant  to  be  brought  before 

court,    ........ 

proceedings  thereon,         ...... 

when  court  may  impose  fine,        ..... 

when  may  imprison,  ...... 

if  defendant  gave  bail  and  does  not  appear,  when  default  entered 
other  attachment  to  issue  or  bond  ordered  prosecuted,  or  both, 
effect  of  order  to  prosecute  bond, 
when  no  party  is  aggrieved,  who  to  prosecute,  .  ; 

sheriff  liable  if  sureties  not  sulTlcient,  when, 
how  misconduct  at  circuit  punished, 
when  sheriff  ordered  to  pay  execution,  shonld  ask  relief, 
ATTACHMENTS  ISSUED  FROM  JUSTICES'  COURTS, 

(See  CONSTACI.KB,    8ERTICB    OP   ATTACUMENTS.) 

ATTORNEY  AND  COUNSELLOR, 

sheriff,  under  sheriff,  deputy,  clerk  and  coroner  not  to  act  as, 
prisoners  brought  before  magistrate  may  send  for  counsel,  &c., 

(Sec   CORONERS,    ARREST    AND  EXAMINATION    OF    OFrENDERS    BT,) 

prisoners  detained  in  jail  for  trial,  may  converse  with  counsel, 
when  exempt  from  arrest  in  civil  cases,  .... 
cannot  be  bail  in  any  action,         ..... 
executions  to  be  signed  by  attorney  or  party,    . 
attorney  entitled  to  admission  of  receipt  of  execution  by  sherifi]  on 
payment  of  fees,         ..... 
>    right  to  control  sheriff  in  strrice  of  execution,  . 

(Sec    EXECUTIONS.) 

when  may  make  deputy  agent  and  release  iheriff, 

76 


7h'i 
IWi 
7H1 

TK-l 
7KI 
7H.'» 
780 
780 

787 
788 
788 
788 

C20,  780 
787,  700 
700 
700 
700 
701 
701 
791 
702 
702 
702 

702 

791 

794 

795,  790 

707,  708 

702,  703 

709 

799 

800 

801 

803 

804 


2 

882 

934 

227 

.  298 

306 

333 

403 

1 

405 

.  407 

474 

407 


r>m 


l.NDKX. 


052 

680 
773 
777 
805 

OOG, 

1024 

4 

2,  828 

791 

B 

80G 

203 

GOC 

SUTIOB. 

ATTUUNEV  AND  COUNSELLOR,  (rontinufJ.) 

laoiiey  colloctod  on  cxiTiitlon  may  Iks  \mU\  altonipy,  .  415) 

m.iv  direct  pro|*crty  levied  on  lo  reninin  with  dfd'iiilnnt  nt  jilnintitl  's 

'  risk 428 

when  may  make  alttdavit  of  nmnimt  dnc  on  redemption,  .    518,  611) 

attorney  cannot  discliargo  derendiuil  from  arrest  on  ca.  »a.  without 

l»aymcnt, 551,662,660,682,680 

l>nt  Jie  may  arknowledfje  satisfaction,  &e., 

may  hv  punislied  for  contemjit,  .... 

and  committed  for  non-payment  of  cost-s, 

liable  to  .sheriir  for  foe.-*,  ..... 

constable  who  serves  process  not  to  act  as  attonicy  on  trial,  . 

when  papers  to  be  returned  to  attorney, 

ATTORNEY  GENERAL, 

to  file  information  when  one  intrudes  into  office, 

need  not  pay  fees  nor  give  bond,  on  is.Nuing  liabcaa  corpus, 

to  be  admitted  into  jails,  ...... 

to  issue  writ  of  iinjuiry  concerning  goods  of  outlaw,     . 
to  proceed  on  sheriU'a  bond,  when  coimty  tre;iaurer  fails  to  collect 
money,        ........ 

when  bond  taken  on  attaclmient,  prosecuted  by, 

AUCTIONEER, 

on  sales  by  officers,  auctioneer  may  call  off  property, 

but  .sale  must  be  by  officer,         ...... 

by  whom  paid,   ........ 

B 

BAIL  IN  CIVIL  CASES, 

no  one  to  be  held  to  bail  without  order,  .... 

who  exempt  from  arrest  and  bail,  ..... 

{See    AliltKST    IN    CIVIL    CASKS.) 

if  on  arrest,  prisoner  refuse  to  give  bail,  to  b'!  committed, 

{ike   AIIRK8T   A.ND    BAII,    U.NDER    CODE.) 

when  sheriff  liable  as  bail,         ...... 

See  BAii,,  RiiJHTS  or,) 
in  what  cases  prisoner  may  be  let  to  bail, 

{See  ARREST  ANn  bail  undkr  conK.) 

(Sec    NE    KXKAT.) 
{Sec  8AI.T,    ARREST    KOR    VI0L.\TI0N,    ETC.) 
(See    ATTACUME.NT  TOR    CONTE.MPT.) 

(See  tJDERTiEs  or  tub  jail.) 
constable  camiot  take  security  from  one  arrested  ou  civil  warrant,     .  1018 

BAIL  IN  CIU.MINAL  CASES, 

«liai  officers  may  let  to  bail,  and  win  II, 

w  hat  courts  may,  ...... 

where  one  convicted  has  brought  errrtr, 

how  and  when  let  to  bail  in  Erie  county, 

one  entitled  to  bail  to  be  taken  before  jiroper  magistrate, 

If  recogulzanco  l-t  taken,  officer  to  di.tcharge  him, 

otherwlm.'  where  a  Justice  assumes  to  aet  without  right, 

and  if  he  allown  him  to  go,  will  be  an  escape  and  muht  rctiiko  him, 

examining  magi.slrale  to  let  to  bail  if  he  has  authority, 

if  not,  prisoner  to  Iw  taken  U-fore  court  or  officer  that  has, 

when  bail  may  be  taken  in  county  whore  arrest  made,  on  endorsed 

warrant,       .  .  .  .  .  .  •  .      73, 123 


GIO 

094 
800,  801 

467 

407 
407 


290 
2*Jl-300 

322 

343 


.  12.1 

127 

128 

129 

130 

131 

122 
1  •>■> 

1  >J 

122 

.   71 

122 

. 

123 

123 

INDEX. 


595 


IJG 

12G 

126 

\'ll< 

,  GIH 

126 

126 

120 

,020 

BAIL  IN  CRIMINAL  CASES,  (ronlinut-,/.) 

wlu'ii  not;  uiid  if  li't  to  bail  must  h(!  retaken,   .  .     71,  75, 122,  12<i 

whi'u  AigitivL'S  fioiii  jiislite  to  1)0  liailc'il,           ....  "^ 

(Voiii  aiiotlur state,             ...  'Jl 
ofliccr  sliduld  give  inisoner  reasoiialtle  lime  to  find  l)ail  before  com- 
mitment,     .             .             .             •             •             •             •             •  '-'• 

a  i)risoner  brought  before  court  of  special  sessions  has  twenty-four 

hours  to  find  bail,    ....•••  ^"^ 

but  lie  may  be  committed  to  jail  for  safe  keeping,  &c.,            .             .  I'J" 
when  disorderly  persons,  and  persons  committed  for  want  of  sureties 

to  keei>  the  peace,  may  bo  let  to  bail,         .  •       09,  100,  102,  10;!,  12.'5 

on  certifying  to  jailer,  prisoner  to  be  discharged,          .             •             .  1-<J 
after  commitment  for  crime,  committing  m.-igistrate,  or  one  before 

whom  prisoner  brought,  may  take  bail,  if  have  jiower,     . 
on  certifying  fact  to  jailer,  may  discharge,         .... 

no  other  magistrate  to  take  bail,  unless  prisoner  brought  before  him 
at  time,         ........ 

if  lie  is  in  jail,  must  be  brought  up  by  habeas  corpus,  . 

but  oflicer  may  go  tojail,  ...... 

criminal  courts  authorized  to  let  to  bail,  may  order  up  prisoner  with- 
out habeas  corpus,  ...... 

when  bail  ordered  on  certiorari,  how  taken,     .  .  ».  . 

BAIL,  RIGHTS  OF, 

one  let  to  bail,  is  in  contemplation  of  law  in  custody  of  his  surety,      .  1-32 
they  are  said  to  have  him  on  a. string,  which  they  may  pulj  when  they 

please  to  surrender  him,      .            .            •            •            •            •  1^2 

may  seize  him  .at  night,  or  in  tlie  day  or  on  Sunday,     .             .             .  l')2 

or  in  church,      .........  132 

while  attending  court  as  a  suitor,          .....  132 

and  his  dwelling  is  no  longer  a  castle,   .....  132 

if  entrance  refused  may  break  open  doors,       .            .            .            .  132 

if  he  resides  with  another,  bail  may  enter  if  doors  open,        .            .  132 

executors,  &c.,  may  surrender,               .             .             .             .             .  132 

the  arrest  may  be  made  anywhere,        .....  I:j2 

in  or  out  of  state,            .......  132 

is  a  contract  between  princi[ial  and  sureties,  and  other  states  will 

I.romote  arrest,        .            .            •            .            •            •  132 

surety  may  comm-and  assistance  of  shcrifT,  &c.,            .            .            .  1.32 

and  may  deputize  .another  to  surrender,            ....  1,33 

though  a  public  oflicer,  he  .acts  as  iigent,          ....  133 

especially  when  arrest  is  m.ade  out  of  state,    ....  133 

lience  security  t.aken  by  agent  for  appearance  not  void,  colore  ojicii,  133 

jKOceedings  on  surrender  in  criminal  ciuscs,       ....  134 

where  agent  is  appointed,          .             .             .             .             .             .  l.jl 

when  principal  arrested,  where  to  be  brought,              .             .            .  1:4 

rights  of  bail  same  in  civil  as  criminal  coses,    ....  .•;i3 

proceedings  on  surrender  on  .arrest  under  Coile,           .            .            .  ;>ii 

rights  of  sheritr  when  liable  .as  bail,      .....  313 

when  and  how  party  surrendered  on  nc  exeat,            .            .            .  4<Jl 

surrender  of  one  on  limits,          ......  672 

when  bail  not  liable  on  undertaking,      .....  339 

exonerated,    .            .            .            .            .            .            .  310 

not  on  bond  for  limits,  if  it  does  not  conform  to  statute,        571,  505,  704,  7C5 


59G 


INDEX. 


1!A1L,  KIGIITS  OF,  {rt>Hiinuf,l.) 

when  one  till  limit.H  i«t  i-onilned  on  crimittal  chargu  and  e»c«i>ofl,  sljcrlfl* 

Aiul  not  bail  liAblo,                ......  686 

whon  prisomr  t>ii  thi-  liiuiUi  U  nut  AJM»lgTii'(l,  sun-ty  not  li.ible  for 

c«cai>«',          ........  " 

(.Stc  tscArts.) 
HANK  BILLS, 

{Sec   MO.NKY.) 

BASTARDS, 

wlun  w.-irr.iiit  to  is-suc  .-igaiiist  fjilhcr  of,            ...             .  1050 

U>  whom  ilirfctcd,           .......  1050 

to  ho  o.\iout*il  forthwith,          ......  1051 

but  warr.int  continues  in  force  until  fully  cxi'cultd,     .  1051 

if  p.-xrly  c.sc.ipc  niay  be  rct.ikin,            .....  1051 

wjirr.uit,  thi>ugh  (lu.isi  ciiniin.il,  to  be  executed  as  civil  i)roces.s,  1051 

cannot  be  executed  on  Suiulay,              .....  1051 

nor  can  outer  door  be  broken  open  to  arrest,    ....  1051 

otherwise,  if  he  escaiHis  after  duo  arrest,           ....  1061 

if  in  another  county,  justice  to  direct  sum  in  which  to  be  held  to  bail,  1052 

warrant  to  bo  taken  to  justice  of  such  county,              .             .  1052 

justice  to  endorse,  on  proof  of  h.andwriting,      ....  1052 

and  then  warrant  m.ny  be  executed  in  such  county,     .             .             .  1052 

on  arrest,  prisoner  to  be  t;iken  before  justice  so  endorsing,      .  1053 

who  may  tike  bond  from  him,  ......  1053 

and  discharge  him  from  arrest,  ......  1054 

to  endorse  certilicate  thereof  on  warrant,          ....  U^4 

penalty  for  refusing  to  deliver  bond,     .....  1056 

if  no  bond  given,  to  be  t.aken  before  justice  issuing  warrant,  .  1050 

in  case  of  vacancy,  &c.,  to  be  taken  before  some  other  justice,  1067 

to  remain  in  custo<ly  during  examination,  &e.,            .            .  1058 
when  committed  to  j.iil,  not  to  Ix;  let  to  bail,  ....  210,  1058 

jMjwer  of  ollieer  on  w.arrant  of  commitment  of  mother,  1059 

when  and  how  discharged,         ......  210 

when  the  mother  may  be  committed,    .....  241 

court  of  sessions  to  discharge  when,      .....  212 

when  may  be  disch.irged,           ......  242 

but  neither  to  be  disch.irged  under  insolvent  act,         .             .  242 

BEfiGAKS  AND  VAGUANTS, 

who  deemed, 101,  100,  107 

olficer  to  arrest  vagrant  when  re(iuired,            ....  105 

when  .iiid  where  to  be  eominitted,         .....  lOG 

disgni.sed  persons  ajipearing  in  public,  thHiiK'd  vagrants,          .  107 

lu.iy  be  pursued  and  arrested  by  sherilf,  &e.,   ....  107 

wlieii  he  receives  information  of  such  person,  duty  to  pursue,  107 

when  amsted,  to  be  brought  Infore  m.igistrate,  107 

oOicer  m.iy  command  power  of  county,            ....  108 

w.trrant  ni:iy  be  insued  against,  by  flctitious  name,       .  100 

when  to  1m- committed,  .                         .  110 

BENCH  WAUUANT.S, 

who  may  Inkuo,  .......  54 

undtr  it,  rriminal  ni.\v  be  .irrested  in  any  place,  04 

uo  bouse  A  protection  after  indictment,            ....  04 


INDEX. 


597 


BENCU  WARRANTS,  (contimifd.) 

when  arrest  miiilo,  prisom  r  to  l)c  taken  lufore  court  or  ofliccr,  ami 
let  to  bail,    ...... 

when  to  1m;  (•((iiiiiiitted,  .... 

wluMi  .irrist  ill  dilli'reiit  cduiity, 

wlicii  i>ris()iiLT  in  jail  of  another  county  for  Kamc  oH'cnce, 
BONDS,  OFFICIAL,  " 

in  forco  so  long  as  olllcer  discharges  duties  of  oflice,    . 

but  sureties  exonerated  after  renewed, 

executing  duties  before  filing  bond,  vacates  olHce, 

and  is  declared  a  nii.sdenu-anor, 

but  ius  regards  tlie  imblie,  lie  is  an  officer  dc  faclo, 
Suehikks'  Bond. 

sherilfs  to  execute  bond,  .... 

when  ;iiid  where  to  be  (iied,        .... 

penalty  of,  if  in  New  York,         .... 

to  have  two  sureties,      ..... 

what  to  justify  in,  ..... 

penalty  of,  in  other  counties,     .... 

to  have  two  or  more  sureties,     .... 

oath  to  be  administered  to  surety, 

to  be  endorsed  on  bond,  .... 

and  be  signed  by  surety,  .... 

but  clerk  to  judge  of  sullieiency, 

if  vacancy  in  ollice  of  county  clerk,  county  judge  to  act, 

to  be  renewed  e.ich  year,  .... 

within  what  time,  ..... 

neglect  to  give  or  renew,  vacates  oflice, 

for  benefit  of  all  injured  by  his  official  acts, 

condition  of,        .....  • 

when  the  condition  broken,        .... 

on  default  of  under  sheriff,  while  ho  discharges  duties  of  office, 

when  act  done  by  deputy  or  jailer, 

but  if  of  speci.ll  deputy,  party  asking  appointment,  lias  no 
action,  ...... 

party  injured  to  apply  to  supreme  court  for  leave  to  prosecute, 

what  mu.st  -show  on  apiilicatiou, 

when  leave  will  be  granted,       .... 

proceedings  thereon  not  atl'ected  by  Code, 

may  be  as  many  suits  as  defaults, 

but  surety  not  liable  beyou^  penalty  of  bond,  . 

but  plea  of  payment  to  be  verified, 

when  surety  discharged,  .... 

amount  jiaid  to  be  allowed  on  bond,     . 

{Sec    SHERIFFS,    ACTIO.NS    AGAI.VST,) 

Bond  of  person  apfointf-d  to  discharge  duties  of  Sheriff. 

person  appointed  to  complete  execution,  to  give  security, 

but  need  not  where  only  aiipointod  to  execute  deed,    . 

person  appointed  by  governor  to  give  like  bond  as  sherilF, 
.     coroner  designated,  to  give  like  bond,  . 

and  so  person  appointed  by  county  judge. 
Constables'  Bond. 

constable  to  execute  instrument,  or  bond, 


right  of 


805, 


XT. 


4,  80:j 

4,  8G:} 

5 


5,9 
SOU 

3,  803 
8fJ3-8G5 

4,863 
8G3 

8G3 
8G7-870 
865 
8«36 
866 
SC7-870 

8t;7 

bTl 
b~rl 
873 


531 

531 

5 

068-971 

973 


987 


598 


INDlil. 


BONDS,  OFFICIAL,  {rontinuci.) 

cotulilion  thoroof,  ..... 

whni  M\d  how  oxroutf*!,  ... 

to  bo  approv«'<l  by  HuiMTvUor  or  town  clrrk, 

nml  Ik>  AUmI  with  l.itt.r,  .... 

but  constable  nor  »urvty  cannot  objict,  not  so  lllod,     . 

neglect  to  pivc  the  lu-curity,  (UhmikmI  rcnisiil  to  serve,  . 

ami  neglect  to  rvncw  vacfttcs  ofllco, 

liability  of  !.urtty  on  bond,        .... 

when  action  to  be  conuncnccd, 

{Sre   CONSTAni.KS,    ACTIONS    AGAINST,) 

BONDS  OF  UNDKR  SlIKRIFFS,  DKI'UTIES  .\M)  .lAlLKKS, 
uikKt  ^lu■rill!<,  ».^i-.,  to  i;ive  .slu'iiirbutul, 
condition  of,        ......  • 

penalty  and  surety  such  as  .sheriirniay  recjuire, 

to  be  executed  before  deputy  pennitted  to  act, 

under  shcritT's  continue  in  force,  while  execut«.'.s  office, 

sheritr  should  t.ike  security  from  special  deputy, 

a  covenant  limiting  dei)utic.s'  duties  void, 

improper  interference  by  s-herill  with  deputy,  may  release  surety, 

but  to  exonerate,  instructions  must  be  explicit, 

advice  and  information  not  sudicient,    .... 

sheriff  will  not  discharge  sureties  by  refusing  to  remove, 

even  when  deputy  has  become  insolvent, 

after  resignation,  surety  ce.use  to  be  liable, 

when  sherifl'  may  maintain  action  on  deputies'  bond,  . 

{Sec    SIIKRIKKS,    ACTIO.NS    BV,) 

BONDS  T.\KEN  IN  PROCEEDINGS, 

void  when  Liken  colore  oj/irii,     .... 

as  indemnity  against  neglect  of  duly,    . 

or  for  the  iloing  an  .ict  not  authorized, 

or  that  another  sh.ill  do  act,  officer  not  authorized  to  roi|iiire, 

otherwise,  if  not  prohibited  by  law,  nor  taken  for  ease  and  favor 

no  agreement  valid  on  discharging  one  from  arrest,  except  in  form 

prescribed,  ...... 

indemnity  against  suit  for  not  taking  one  to  jail,  void, 

a  bond  given  as  t^'inporary* bail,  void,  . 

but  may  be  returned,  and  new  bail  reijuired,  &c., 

bond  for  limits  must  conform  sub.««tantially  to  act, 

any  additional  condition  renders  it  void, 

after  voluntary  escape,  bond  for  limits  void,     . 

but  a  bond  of  indemnity,  after  negligent  escape,  good, 

mdemnity  against  a  return  of  nulla  bona,  void, 

a  bond  is  void,  if  the  condition  on  which  it  might  be  re<|uired  did  not 

cxiht,  ..... 

in  gencrjil,  must  conform  to  statute, 
but  hnfllcient  if  it  conforms  substantially, 
Jf  defective,  may   be  amended,  .... 
hlierilTn,  conntableii,  &c.,  may  ndminisler  oath  to  sureties, 
certain  bond*  to  be  acknowledged  before  received  or  filed, 
rcniilenee  and  occupation  of  surety  to  be  given, 
when  and  when-  crrtain  bonds  to  be  filed, 
when  bond  to  bu   at-igncjl,         .... 


'JS7 
Jt87 

1188 

W8,  1092 

080 

991 

1092 

1003 


18-20,  703 

18,21,703 

18 

18 

18 

18 

13 

18 

18, 828 

18,828 

18 

18 

18 

828 


571,595,702 


702 
704 
704 
702 
702 


505,  704 
704 
704 
701 
671 

571,  704 
704 
703 
704 


'1. 


704 

ro5 

705 
706 

roo,  luic 

707 

708 
709 
770 


INDKX.  599 

iBcnoa. 


BONDS  TAKKN  I.\  PROCEEDINGS,  {conlmur,!.) 

assif,'iiiiR'iit  by  slicMil!"  iiiay  bo  oxccuUd  out  of  county,  .  .  288 

for  bonds  oMkurs  may  take, 

{Sn:   AUKKST   AND   BAIL    UNDER    CODK.) 

(&v;   ATTACHMKNT   AUAINST   KORKKiN    COKPOUATIONS,    kC.) 

{Sec   ATTACHMENT    AOAINST    AD8C0NDIN0    DEBTORS,  tC,    fNDKR    R.    .1.) 

{Sec    ATTACHMENT    AGAINST    FOREIUN    CORPORATIONS,    UNDER    R.    8.) 

{Sec    ATTACHMENT   FOR    CONTEMPTS.) 

{Sec   CORONERS,    EXECUTION    OP    PROCESS    WHERE    SHERIFFS    ARE    PARTIES.) 

(.S'a-   BONDS    OF    INDEMNITY.) 

{Sec    CONSTABLES,    SERVICE    OF    ATTACHMENT.) 

{Sec   CONSTABLES,    JUSTICES*    EXECUTIONS.) 

{Sec    CLAIM    AND    DELIVERY    OF    PERSONAL    PROPERTY.) 

(Sic    HABEAS    CORPUS    AND    CERTIORARI,    WHITS    OF,) 

{Sec    HABEAS    CORPUS    AD   TESTIFICANDUM,    WRIT    OF,) 

{Sec    LEVY.) 

{Sec   LIBERTIES    OP   THE   JAIL.) 

{See   NE    EXEAT.) 

{See   RECEIPTOR    AND    RECEIPT.) 

{Sec    SALT,    ARREST    FOR,    tC.) 

{Sec   WRIT    OF    POSSESSION.) 

BONDS  OF  INDEMNITY, 

.sherill's  ami  constables  may  take  certain  bonds  of  indemnity,  438,  452,  7C3,  1032 
may  take  indemnity  a^ain.st  levy  where  title  is  uncertain,  .  452,  7C3,  1032 
or  for  payment  over  of  money,  when  conflicting  claims,  .  .    413,703 

after  levy,  plaintiff  not  bomid  to  indemnify  until  jury  has  passed  on 

title, 438 

if  officer  releases  levy,  will  have  to  show,  if  sued,  that  property  was 

not  defendant's 438,452 

if  claimant  recovers  against  officer,  latter  not  bound  to  pay  money  to 

plaintiff,  though  indemnified,  .....  419 

when  ofticer  may  take  indemnity  on  proceedings  by  attachment,    374,  380,  382 

{Sec    WRIT    OF    POSSESSION.) 

BOOKS  AND  rAPERS, 

{Sec    DELIVERY    OF    OFFICIAL    BOOKS    AND    PAPERS.) 

BOOKS  OF  ACCOUNT, 

may  l>e  attached  by  sheriff,  .....  367,  380,  3S2 
but  not  levied  on  under  execution,        .....    442,  405 

BREACH  OF  THE  PEACE, 

{Sec    AFFRAYS    AND    RIOTS.) 
{Sec    PEACE  WARRANTS.) 

BREAKING  DOORS, 

{See  DOORS,  breaking  open.) 

BRINGING  THE  PRISONER  BEFORE  THE  MAGISTRATE, 

when  arrest  is  made  without  warrant,  officer  may  release  party  if 

innocent,      ....••••  09 
so  he  may  release  him  if  process  void,             .            .            .            55-59,285 

but  not  if  arrest  made  under  valid  warrant,      ....  09 

prisoner  to  be  brought  forthwith  before  magistrate,     ...  09 

and  magistrate  cannot  authorize  deteation  till  auothcr  time,             .  59,  09 

if  officer  obeys,  both  are  trespassers,     .....  09 

but  officer  may  detaiu  prisoner  over  night  or  Sunday,  in  certain  cases,  09 

before  what  ma::istrate  to  be  taken,     .....  70 


600 


INDEX. 


nRIXOING  THE  rniSONKR  RKFOUE  THE  MAGISTRATE,  {a»Uinue,I.) 
wlion  arri'si  m;nU'  uiulor  w.irr.iiit,  .... 

whon  |iroi>or  m.i^strnl«'  al>'»ti»l,  &c.,     .... 
wluMi  arrest  in.ido  in  (litU-nMit  r«>unly, 
whon  ltn»U!?ht  lK'f«»rc  m.-ujislrnU*,  how  (IcLihii-tl, 
lu.ijislrnto  lu.iy  »o*roh  for  pr<>|>erty  to  ftpj>ly  to  prLsoncr's  support, 

{Sre    AfKRAYS     ANI>    BIOTi.) 

{See  BAir,  i.s  criminal  ca»e.s.) 
(iSf«r  B«ii.,  niGHTS  or,) 

{See    B,tSTARDS.) 

{See  Br.nGAR.s  and  vagrants.) 

{Sec  Br.xcH  wakuants.) 

{Sec  coRONcns,  arrkst  a^d  kxamivatkin  oy  orrE.VDKRS  bt,) 

{Sec  ni.snRnF.ni.v  rf.RsoNS.) 

{See    DI8TCBBANCK    OP    REMOIOCS    MEKTINU8.) 

{See   FUGITITES    FROM    JUSTICE.)  J 

{Sec   GAMING.) 
{See    FKACB    WARRANTS.) 
{See    8PIRITUOC8    LiaUORS.) 


■trnoii. 

71 
7'* 
7.1,  71 
77 
78 


CAN'AL  OFFICERS, 

ccrt.iin,  not  lial>lc  to  serve  as  jurors,      ..... 

when  conimis.sioucrs  and  appraisers  may  issue  subpoenas, 

liow  served,         ........ 

wlicn  canal  board  may  issue  subpoenas,  .... 

who  to  serve  and  liow,  ...... 

{Sec   WITNESS,    COMPELLING    ATTENDA.VCE    OF,) 

certain,  not  to  bo  held  to  bail  in  certain  cases, 
when  commis-sioners  to  pay  executions  .igainst  contractors,     . 
when  to  take  proceedings  for  delivpr)'  of  canal  premises,  books,  &c., 
duty  of  officer  in  executing  process,      ..... 
CA.PIAS  AD  RESPONDENDUM, 

{See    EXECDTIONS    AGAINST    THE    BODY.) 

CERTIFICATE, 

when  sherifT  has  qu.iliflod,  county  clerk  to  grant, 

to  be  served  on  old  sihcriif,        .... 

returns  to  process,  in  form  of,  • 

ofllcers,  &c.,  attending  execution,  to  make, 

on  deposit  in  lieu  of  bail,  sherilfto  give  defendant, 

on  depositing  with  clerk,  to  give  two,    . 

one  to  be  delivered  to  plainlilf,  and  other  to  defendant, 

on  surrender  of  iiri.soner,  sherifT  to  give, 

proof  of  service  of  summons  to  be  by,  . 

a  debtor,  &.C.,  of  one  against  whom  attachment  ha.<)  issued,  to  give 
certifleatc  of  inilcbtediiess,  &c.,     ....         371, 

on  hale  of  land,  bherill'to  give  purchaser, 

to  execute  to  jhtkoh  redeeming, 

may  be  proved  or  acknowledged, 

cflect  of  such  crtilie.ite,  .... 

certifleatc  of  redrmpliou  t<^)  be  filed,  when, 
CHARGES  AGAINST  SHERIFF, 

{Sec  kiiERirra,  cdarges  against,) 


174 
199 
199 
200 
200 

305,306 
4(A 
C63 
GG3 


G 
C 
89 
278 
836 
336 
836 
841 
851 

380,885 
489 

499,  626 
626 
626 
526 


INDEX. 


601 


■icnoir. 
CHATTEL  MORTOAGE, 

oil  grass  and  trees,  not  a  severance  till  forfeiture,       .                        .  442 

when  forfeited,  grass  ami  trees  may  be  sold  on  execution  against 

mortgagee,  ........  44'2 

goods  mortgaged,  when  may  be  sohl  aa  against  mortgagor,  450,  451,  470,  84G 
If  mortgagor  has  right  of  possession,  sheriff  may  sell  and  deliver  to 

purchaser,    ...,,...  810 

if  no  right  of  possession,  cannot  bo  sold  aa  against  him,  450 

if  mortgage  void,  duty  of  officer  to  sell,             ....  452 

what  necessary  to  render  valid,             .....  451 

if  sale  is  in  hostility  to  void  mortgage,  jiurchascr  takes  absolutely,  470 
if  valid,  purchaser  acquires  rights  of  mortgagor,  ,  .  .  470,477 
after  default,  goods  may  be  sold  against  mortgagee,    .            .            .    442,  450 

whether  reduced  to  possession  or  not,  .....  450 
CHATTELS, 

(^SCC   GOODS    AND    CHATTELS.) 

CHECK, 

bank  check,  not  payment  unless  money  received  before  time  of  redemiv 

tion  expires,            .            .            .            .            .            .            .  510 

CHOSES  IN  ACTION, 

may  be  attached,  ......        367,  380,  382 

but  caonot  be  levied  on  under  execution,         ....    442,  4C5 

CITATION, 

(Sec    SURROGATES,    PROCESS    ISSUED    BY,) 

CLAIM  AND  DELIVERY  OF  PERSONAL  PROPERTY, 

proceedings  on,  substitute  for  replevin,            ....  352 

affidavit  to  be  made,  and  contents,        .....  353 

plaintiff  or  attorney,  by  endorsement  to  require  delivery  of  property,  354 

undertaking  to  be  executed,      ......  355 

surety,  number,  and  who  may  be,         .....  355 

to  justify  and  acknowledge,       ......  355 

affidavit,  order,  and  undertaking  and  copies,  to  be  delivered  sheriff,  350 
if  surety  sufficient,  sheriff  to  endorse  approval,             .            .            .    350  357 

order,  how  executed,      .......  357 

on  demand  and  refusal,  doors  may  be  broken  open,     .            .            .  357 

when  property  seized,  how  retained,     .....  357 

sheriff  to  deliver  copies  of  affidavit,  order  and  undertaking  to  defend- 
ant or  agent,            .......  357 

within  three  days  defendant  may  except  to  surety,      .            .            .  353 

if  ho  fail,  all  objection  waived,  ......  353 

sheriff  responsible  until  surety  justify,            ....  358 

if  defendant  excepts,  cannot  claim  return  of  property,  .  .    353  359 

if  he  claims  re-deliven.-,  to  give  midertaking,  ....  359 

sureties  and  condition  thereof,  ......  359 

shcriir  responsible  for  defendant's  sureties  till  they  justify,      .            .  36O 

may  retain  property  till  they  justify,     .....  350 

if  they  fail  to,  property  to  bo  delivered  plaintiff,          .                         .  3(30 

qualifications  of  sureties,          ......  300 

proceedings,  when  claimed  by  other  than  defendant,  .            .            .  301 

no  claim  valid  unless  made  as  prescribed,        ....  361 

bow  long  property  to  be  detained,  and  when  delivered,          .            .  362 

when  delivered,  to  be  on  payment  of  fees,       ....  362 

affidavits,  notice,  &c.,  to  be  filed  within  twenty  days,           .           .  363 

77 


G02 


INnEX. 


CLAIM  AND  DELIVERY  OF  PERSONAL  rROPERTV,  {cPtUintu:,l.) 

uml«'rtakii»in!i,  how  i1j.s|>o!kxI  of,  ...  . 

CLERGV.MEN, 

to  W  .tiliniltcd  to  jftlls,  wlion,  ..... 

divine  !«orviro  to  N' iHTfonufd  in  j.iil,  .... 

wlu-n  iu.\v  attend  fxocutlon  of  criminal, 

not  li.iMo  to  MTvc  on  juries,        .  .  .  .  . 

COLLECTION  OF  TAXES, 

{See  COCNTY   TREASURER.) 
ill  ritii's  .iml  villages,     ...... 

<  (tMl'Ti;oLLER, 

iii.iy  visit  county  j.iils  at  plca-suro, 
^he^ifts  to  sen"c  uotiiicatiou  of,  on  dcfaultcr.s,  . 
'        liow  sor\-cd  and  rctunicd,  .... 

shfrifls  to  execute  warrant  of,  against  c.inal  collectors, 
how  executed,     ...... 

sheriHs  may  be  attached  for  not  returning, 

to  execute  warrants  of,  agaiiL-^t  railroads, 
to  audit  accounts  for  arresting  fugitives, 

transporting  i)risoner9,  &c., 
removing  intruders  from  public  lands, 
in  other  cases, 
CONSERVATORS  OF  THE  PEACE, 

who  are,  shcritls,  coronera,  constables,  &€., 
•  their  duties,  ...... 

{See   ATFRAYa    AND    RIOTS.) 
{StC   ARREST   IN    CRIMINAL   CASES    WITHOUT    WARRANT.) 

CONSTABLES, 

Or  THK  Election  and  Duties  op  : 
dilll-rent  descriptions  of  constables, 
town  con9tal)le8,  ..... 

high  constables,  police  constables,  &c., 
character  of  duties  of  town  constables, 
must  possess  same  qualificationB  as  sheriffs,     . 
and  bo  re.sidents  of  the  town,     .... 
but  not  limited  to  one  term,       .... 
and  may  hold  any  other  offices  not  incompatible,  &c., 
when  and  how  chosen,    ..... 
the  number,  and  how  determined, 
if  not  limited,  five  highest  cho.sen, 
not  necessary  to  detennine  number  each  year, 
if  number  limited,  ballots  cast  for  greater  number  void, 
If  number  detenuiucd  is  three,  and  town  elect  but  two,  they 

old  constables,         ..... 
cities  and  l.irgcr  villages  usually  elect  more  than  towns, 
bold  for  one  yc.ir,  and  until  «ueee.s.sors  cjualiO'i 
If  api>oiiiU-d  to  till  a  vacancy,  hohl  till  succes-sor  chosen,  &c., 
when  to\ni  failh  to  elect,  three  ju.tticcs  may  api)oint,     . 
bow  vftcanclen  by  reHipnation,  dtc,  filled, 
b«»w  nolifle*!  of  el<<lion,  &«.,     .... 
to  iakv  oath  of  oflice,     ..... 
and  c.iusc  name  to  be  file<l  with  town  clerk, 
penalty  for  executing  olllco  without  oath. 


3C3 

222 
213 
276 
17G 


ro2 


703 

703 

704 

704 

704 

1170 

90 

268 

707 

1008-1104 

26,48 
25,  48,  994 


976 

076,  977 

976,  977 

978 

2,979 

979 

979,  991 

991 

980 

980 

980 

980 

980 


oust  all 


980,  981 
980 
981 
9«1 
982 

983,  984 
9«6 
986 
986 
986 


G03 


■  ECTIOM. 

CONSTABLES,  {continued,) 

iilso  to  execute  bond,  &c.,        .....     'J87,  088 

{See    DO.VDS,    OFFICUI..) 

neglect  to  take  oath  or  give  bond,  deemed  refusal  to  scn-c,    .  .    080, 089 

when  and  liow  may  resign,        ......  O'JO 

wliat  will  vacate  odice,  ......  091 

when  and  how  removed,  ......  002,  1003 

powers  and  duties  a.s  peace  ofllccrH,  Kamc  a.s  sherifTH,  25,  48,  03,  105,  094 

*(.SVf    AKFIUYS    AND    IIIOTS.) 

{See    AKRKST    IN    CRI.MI.NAL    CA8F.8.) 

{See   ZKIU    IN    CRIMINAL    CASKS.) 

{See    BASTARDS.) 

{See   DKGGAna    and    VAtiRANTS.) 

{Sec   BRINGING    THE    PRISO.NF.R    DKrORK    .MA<il8TRATE.) 

{Sec   COURTS    OP    SPECIAL    SESSIONS.) 

{See   DISORDERLY    PERSONS.) 

{See  DISTURBANCE   OP   RELIGIOUS   MEETINGS.) 

{See  ELECTIONS.) 

(See   EXECUTION    OP    SENTENCE.) 

{See    FUGITIVES    prom   JUSTICE.) 

{See   GAMING.) 

{See    PEACE    WARRANTS.) 

{See  POWER  OP  THE  county.) 
{See  racing.) 

{See   SPIRITUOUS    LiaUORS.) 
{Sec    WRECKS.) 

constables  alone  execute  civil  process  from  justices' courts.     .            .  052,004 

may  execute  such  in  any  part  of  the  county,  ....  004 

and  may  pass  through  other  coimties,             ....  2S8,  004 

execute  civil  process  like  sheriffs,         .....  'J04 

{See    APPROPRIATE    HEADS    FOR    MANNER    OP    EXECUTION    OF    PROCESS.) 

but  must  execute  in  person,  and  not  by  deputy,            .            .            .  005 

though  justices  may  deputize  another  in  certain  cases,            .            .  005 

not  to  act  as  attorney  in  certain  cases,            ....  006 

forbid  receiving  pay  for  not  arresting,  (tc,       ....  007 

or  i)ostponing  sale,        .......  'jOT 

prohibited  from  buying  bonds,  notes,  &c.,        ....  007 

penalty  therefor,             .......  007 

penally  for  serving  process  on  S.iturday  in  certain  cases,        .            .  008 
civil  process  issued  by  justices,  to  be  signed  and  filled  up,     .            ,  090. 1031 

direction  by  justice  to  alter  dates  void,            ....  009 

may  be  with  or  without  .seal,    ......  !»'j9 

may  serve  certain  process  in  his  own  favor,      ....  1I.KX) 

when  execution  commenced,  mu.st  be  finished  by  same  constable,      .  KKX) 

rules  same  as  in  ea.se  of  sherills',  on  serving  irregular  or  void  i)rocess,  1001 
Service  op  the  Su.m.mons  : 

difierent  descriptions  of,            .....            .  1(k)2 

when  to  be  served,         ■••...  1(K).3 

how  served,  •    .            .            .  2004 

rights  and  liability  on  entering  dwelling,  same  as  sheriffs',  1005 

{Sec   DOORS,    BREAKING    OPEN.) 

how  served  when  cannot  obtain  entrance,        ....  1005 

return  of  service,  .......  lOOC 


t',(U 


INDEX. 


CONSTAnLES,  {canlinufd.) 
Skhvkk  of  Attaciimkntb  : 
fornj  ami  cohumiI.h  of,    . 
when  and  liow  i>xetulod, 
powers  juid  (lutii'S  of  conMnMcn, 
SAiue  .vi  on  K'vy  xiiulor  oxeculion, 
liability  of  con.tlaMo  for  g.xKls, 
on  soizurt',  go«xl»  In  custtnly  of  tin*  law, 
ami  rontinuo  so,  though  bond  is  f:ivt-n, 
oUurwiso,  If  poods  are  rtnn)ved  from  county,  &c., 
gotnls  not  to  be  removed  by  consU-xblo,  if  bond  given,  . 
conditions  of  bond,  fiw.,  .... 

when  claimant  may  give  bond  for  goods, 
condition  of,       . 

sureties  and  apjtroval  of  bond,  ... 
return  to  attachment,  what  to  contain, 
Service  or  WAHtiANTs  in  Civil  Cases  : 

must  be  directed  to  a  constable  of  coimty, 

what  to  contain,  ..... 

if  n.aine  of  defend.int  not  known,  may  be  described  by  flctitious 

but  constable  mu.st  arrest  proper  party, 

powers  and  duties  of  constables  .same  as  sherifR'  on  arrest, 

time,  place,  and  manner  of  arrest  same, 

same  persons  exempt  from  arrest, 

same  right  as  sherifls,  to  call  upon  others  to  aid, 

resisters  li.ible  to  same  punishment, 

and  may  retake  prisoner  in  same  cases, 

{Sec   ARREST    IN    CIVIL    CASES.) 

arrest,  how  made,  ..... 

constable  not  to  t.ike  security  for  defendant's  appe.ir.ince, 
but  may  allow  prisoner  to  go  at  large,  if  he  have  him  when  required 
if  he  liave  him  not,  will  be  an  escape, 
even  though  he  is  t.iken  on  a  criminal  charge,  . 
prisoner  to  be  brought  forthwith  before  the  justice, 
in  certain  cxses  may  be  detained  awhile, 

if  justice  be  absent,  &c.,  prisoner  to  be  taken  before  next  justice, 
plaintilf  to  be  notified  of  arrest,  . 
return  of  warrant,  how  made,  &c., 
how  prisoner  detained  before  justice,     . 
not  more  than  twelve  hours  before  tri.il,  &c.,     . 
unless  dcl.iyed  at  iiist.ince  of  defendant, 
time  <xcupied  in  lln<liiig  justice,  im  p.irt  of  the  twelve  hours, 
but  if  unnecessary  delay,  &c.,  all  .are  liable, 
when  prisoner  Uj  bo  discharged, 
Ves'IRE  asu  Trial  : 

when  venire  to  Issue,  and  contents, 
to  whom  <lellvered, 
who  xhould  not  e.xccute  it,  . 

one  employed  to  .*irt  jis  altoniey,  not, 
how  exi'<ut«<l  and  relumed, 
jurors  rflurm-d,  how  drawn, 
when  chown  from  by-ht;inder»,  . 
when  new  vcuirc  i*j  iwue. 


1007 
1008 
1009 
1009 
1009 
1010 

1010,  1011 
1010 
1011 

1011,  1013 
1012 

1012,  1013 
1013 
1014 

1016 

1015,  1016 

name,    1010 

1016 

lOlG,  1017 

1017 

1016 

1017 

1017 

1017 


1018 
1018 
1018 
1018 
1018 

1018,  1019 
1019 

1019,  1020 
1020 
1021 
1022 
1022 
1022 
1022 
1022 
1022 

1023 
1021,  1028 
1021 
1024 
1026 
1020 
1027 
1028 


INDEX, 


605 


CONSTABLES,  (conlinwd.) 

to  wlioiii  tlelivi.Tcd  for  oxfcnticni, 

to  be  extculfd  ami  rcturucd  as  first,     . 

oath  to  constable  to  take  charge  of  jury, 

erroneous  oath  fatal  to  verdict,  , 

if  jury  do  not  retire,  constable  need  not  be  sworn, 

but  if  left  in  room  alone,  constable  must  be  sworn, 

f^ScC    WITNESS,    COMPKLLINU    ATTENDANCE    Of,) 

Justices'  Execltions: 

when  may  issue,     ...... 

form  of,        ......  . 

may  in  proper  case  be  against  property  and  body, 
but  not  against  body  of  female,    .... 

execution  must  bo  entirely  filled  up, 

cannot  be  amended  after  executed, 

authority  to  constable  to  alter  void, 

must  bear  date  wlion  issued,  .... 

and  be  made  returnable  sixty  days  from, 

returnable  at  longer  or  shorter  date  void, 

how  endorsed  and  executed,  when  all  parties  not  served  with  summons 

duties  of  constahles  same  as  sherillis' on  execution, 

not  a  lien,  until  levy,         ...... 

except  when  subsequent  one  comes  to  bands  of  same  constable, 
and  wiien  goods  attached,  levy  dates  from  time  of  attaching,    . 
wiiat  may  be  levied  on,     . 
when  levy  to  be  made,       ...... 

(iScC    LEVY.) 
{See    PERSONAL    PROPERTY  SUBJECT   TO    LEVY.) 

when  execution  renewed,  levy  to  be  renewed,    . 

time  of  levy  to  be  endorsed  on  execution, 

if  property  claimed,  may  call  jury,  .... 

{Sec   JURY  TO  TRY  CLAIM  TO  PROPERTY.) 

may  take  receiptor,  ...... 

{See   RECEIPTOR    AND    RECEIPT.) 

but  must  claim  property  dming  life  of  execution, 
when  to  advertise  and  sell,  ..... 

when  and  where  sale  to  be,  ..... 

power  and  duties  on  sale,  ...... 

{Sec  SALES    U.VDER  EXECUTIONS.) 
{See   SALE    OF    PERSONAL    PROPERTY.) 

not  to  purchase  goods  sold  by  him,         .... 

if  no  bidders  attend,  to  postpone,  &c.,  .... 

not  to  sell  at  too  great  sacrifice,  ..... 

when  and  how  execution  renewed,  .... 

how  long  renewal  deemed  to  continue,    .... 

when  against  body,  tirst  to  look  for  goods, 

if  defendant  declares  he  has  none,  may  be  arrested  at  once, 

after  selling  property,  to  arrest  and  commit, 

if  after  arrest  defendant  is  allowed  to  go  at  large,  will  be  an  escape 

even  tliough  he  has  his  body  at  the  return  day, 

power  of,  on  executions  for  penalty,        .... 

no  power  under  execution  after  return  day,  unless  renewed,    . 

and  if  renewed,  can  do  nothing  after  expiration  of  time, 

but  if  defendant  escapes,  may  retake  after, 

when  execution  must  be  returned,  .... 


■■cnoa. 

1021,1028 

l(J2o,  1028 

102'J 

102'J 

102'J 

102'J 

1030 

10;J1 

io;ii 

1031 

1031 

1031 

.  009,  1031 

1031 

1031 

1031 

,  431, 1031 

1032 

1033 

1033 

1033 

1034 

1035 

1035 

1036 

;  438,1037 

1037 

1037 
1038 
1038 
1038 


1038 
1038 
1038 
1039 
1040 
1041 
1041 
1011 
1041 
1041 
1012,  1043 
1044 
1044 
1044 
1045 


GOG  INDEX. 

CKlTIOM. 

CONSTABLES,   (amiinucj.) 

what  to  rt'lurn,  ....  HHO 

may  cuni|ili.-tc  vxocution  after  tvrm  of  olllcc,      ....  U'17 

when  apiH'al  brought,        ....■■  lutH 

Dmss  IN  Spkcial  PiiocsKDiNaa : 

1.  Il.ibttunl  lintnkards  : 

to  summon  jury  to  try  question,  ....  ICHJC,  1UC7 

how  |iruco&s  executed  for  costs,    .....  1008 

2.  Idle  ami  truniU  ckiUrcn  : 

when  ami  how  to  bo  committed,  ......  1009 

3.  Ilatckcn  nml  ptdlan  : 

wljen  and  how  arri'.stod,  if  have  no  license,  .  1070,1071 

on  conviction  justice  to  i.s.^^e  warrant,     .....  1072 

not  entitled  to  costs,  if  refused  to  produce  license,  &c.,  1073 

4.  Under  highway  laics: 

to  serve  .summons;  how  served,  ......  360,1074 

how  line  collected,  .......  1075 

5.  Sum77u>ning  jury  to  assess  damages  on  opening  highways: 

how  executed,        ........  107G 

6.  Encroachments  upon  hii^htcays: 

who  to  be  summoned  as  jurors,    .....  1078,1079 

constable  to  select,  .......  1079 

to  give  commissioners,  ifcc,  notice,  .....  1060 

when  warrant  to  issue  lor  costs,  ......  1081 

7.  Drainint;  suramps: 

summons  for  jury,  how  served,     .....  10!>2,  1083 

.S.    }y/icn  to  attend  courts: 

when  summoned  to  attend  courts  by  shciiff,       .  149,  150,  1087,  1088,  1163 

to  act  aa  criers,  unless  crier  appoiuttd,    .....  161,1103 
to  receive  no  compensation  therefor,        .....  151 

for  other  duties, 

{&C    tOLLFXTlON    OK    TAXES.) 

(&C    COIBTS    MARTIAL.) 

(See    DISTRAINING    INANIMATE     rROPERTY.) 

{See  EXECUTION  or  process  or  jddicial  okpicers.) 

(See  fines,  collection  ok,) 

{See  roRciuLE  entry  and  detainer.) 

(See  HABEAS  corpus  and  certiorari,  writs  op,) 

{See  INSANE.) 

{Sec    INSOLVENTS.) 

(Sir    NON-IMPRIBON.MENT    ACT,    ARREST    UNDER,) 

{Sec    PENALTIES.) 

{Sec    PLANK    ROAD.S,    SLM.MONINQ    JURY,    »C.) 

{See   SALT,    ARRE.1T    KOH    VIOLATION    OP    LAWS,    kC.) 

{See    BlRReKJATKS,    PROCESS    ISSUED    UY,) 

{See    SIIERIPKS,    CHARGES     AiiAINST.) 

{See    DELIVERY    OK    OKKICIAL    DOOKS    AND    PAPERS.) 

{See  WITNESS,  co.mpellinu  attendance  ok,) 
A<TI0N«  Against, 

1.   Caui  irhere  rriminally  liable  for  misconduct : 
penalty  for  executing  duties  before  taking  oath  of  odlco,  .'.   '.t.sg 

wilful  and  corrupt  refiLsal  to  execute  process,  6lc  .  11 

I»ermltlint,'  a  prisoner  to  escape,        .  .  11 

agreeing  for  p- ward  to  permit  escape,  .  11 

refusing  copy  of  process,  .  '.  ::',•,  001 


INDEX. 


G(37 


CONSTADLES,  (conthme,!.) 

liablo  for  not  ruturiiing  process,  ..... 
oppri'.ssion  in  execution  of  ulllcc  Indictable, 
extortion,  todenuind  fees  beforo  servico  rendered, 
misdemeanor  to  allow  another  to  execute  duties  of  onicc, 

violate  statutes,  concerning  arrest  on  civil  proces.s, 
act  without  authority,    .... 
insert  Mames  of  defendant's  witnesses  in  subpoina  for 

the  people,    .  .  :  . 

♦rau.sfer  one  to  evade  habeas  corpus,    . 
reoonunit  one  discluirged  on  liabeas  corpus, 
refuse  to  pay  over  njoney  collected  on  military  war 

rant,  .  .  .  .  • 

commit  certain  frauds  in  regard  to  wrecks 
violate  provisions  of  act  of  185o,  concerning  stolen 

property, 
knowingly,  &c.,  cause  process  to  be  served  on  Satur 

day  in  certain  cases, 
asking  or  receiving  any  money,  &c.,  for  omitting  to 
arrest,  .  .  ... 

for  postponing  sale 
purchasing  bonds,  notes,  Sec,  to  sue,   . 
neglect  of  any  duty  under  jjioliiljilory  law, 
contining  lunatics  in  any  other  way  than  prescribed, 
wilful  neglect  of  any  duty, 
demanding  illegal  fees,  .... 
2.    When  liable  to  party  aggrieved  : 

in  general,  in  same  cases  as  sheriffs, 
for  refusal  to  serve  or  return  process, 
to  pay  over  money  collected, 
for  an  escape,  .... 

what  a  good  defence, 

liable  to  third  parties  for  wrongful  interference,  ifcc,     . 
and  cannot  defend  on  ground  that  he  is  minor, 
for  detaining  a  prisoner  on  civil  process  over  twelve  hours, 
for  executing  process  after  return  day,  &c., 
liability  of  his  sureties  on  bond,  .... 
when  actions  to  be  commenced,    .... 
Actions  by  Co.nstables, 

constables  may  maintain  actions  in  the  same  cases,  for  fees,  &c.,  as 
sheriDTs,  ....•■•• 

(&C    SIlERirrS,    .\CTI0N«    ET,) 

CONSULS, 

exempt  from  arrest  on  civil  process  from  state  courts,  . 
COUNSELLORS, 

(fifce  ATTORNET   AND   COUNSELLOR.) 

CORONERS, 

Of  the  Election  and  Dcties  op, 
number  of  coroners  to  be  chosen, 
at  same  time  as  sherilVs,     . 
to  hold  oflico  for  same  time, 
and  may  be  removed  in  same  way, 
when  elected  when  new  county  formed,  . 
to  be  notified  of  election,  . 
name  to  be  entered  with  secretary  of  slate, 


80,  40 

829 

829,  10:i6 

11 

ii.or/j 

30 

197 
C27 
020 

G90 
7JO-712 

1157 

998 

997 

997 

997 

llo!} 

1063 

829 

1095 

1090 
1090 
1090 
1090 
1090 
1091 
1091 
1022,  1091 
1091 
988,  1092 
1093 


805 


293 


881 
1,881 
1,881 
881 
881 
881 
881 


608 


INDEX. 


CORONERS,  i^o'iUnurd.) 

must  Ik<  twcnty-ono  yp*n  ofi^, 

and  rf.iiiio  in  county  for  whirli  chosen,   . 

not  to  |)rartico  »."«  attonu'V,  Ac,    . 

may  hoM  the  ofllc<i  morv  tlinn  one  terra, 

art"  not  forl'itJ  hoUling  other  olHt<>, 

whrn  to  cntor  upon  ilutii'H  of  olllco, 

how  long  to  hold  the  olllco, 

OAth  of  otlico,  when  and  where  fili-d, 

penalty  for  executing,  witliout  taking  oath, 

may  n-sigti  to  the  governor, 

and  mny  bo  rcmoTwl  like  sheritTs, 

(Sec    SUKRIFFS,    CHARGES    AOAINIT,) 

in  wliat  cases  odicc  will  become  vacant, 
I>enalty  for  certain  offences, 

allowing  another  to  discharge  duties, 
vacancy,  when  filled  by  governor, 
how  long  person  appointed  to  hold, 
when  and  how  removed.    .... 
when  and  how  vacancy  supplied  by  election, 
territorial  jurisdiction  of  coroner, 

duties  of,  to  hold  imiuests  on  bodies  of  persons  slain,  &c 
to  issue  process,  and  take  examination  of  the  accused, 
to  act  as  conservators  of  the  peace, 

(Sec   CONSEHVATORS    OF    THE    PEACE.) 

to  execute  process  when  the  sheriff  is  a  party,  . 
to  execute  the  office  of  sheriff  ia  certain  cases,  . 
to  take  charge  of  wrecked  property, 

(See  WRECKS.) 

the  duties  of  coroners  on  inijuests  cannot  be  delegated, 
but  when  designated  to  execute  olllco  of  sheriff,  may  appoint  deputies 
in  what  ca.ses  to  hold  inquests,     . 
Crimes  Coumzadi.e  cy, 

murder,  what  is,     .... 
manslaughter  in  lirst  degree, 

second 

third 

fourth 
excusable  homicide, 
justitiable  homicide, 
wounding,  ..... 
concealing  death  of  a  bastard  child, 
suicide,        .  .  .  .  ■ 

principals,  iii  the  first  degree, 

second 
acccMarics,  .... 

Lsuleiith,  iiki.d  by, 

when  receive  notice  of  a  person  slain,  &c.,  to  summon  Jury 

DunilK-r  and  tjualillcation  of  jurors,  and  how  summoned, 

where  jury  hhould  meet,    ..... 

there  can  l>e  but  one  ioijucat  on  same  body, 

but  one  intiueHt  may  be  held  on  all  killed  at  same  time, 

juror*  arc  not  rhallengable  by  either  I>arty, 

coroner  may  Usuo  BnbiKJuiuis,       .... 

bow  Bcrred,     ...... 


882 
882 
882 
2,882 
882 
883 
883 
884 
884 
886 
886 

886,886 

11,887 

888 

889 

889 

889 

890 

891 

8'J2,  911-929 

64,  8'J2,  930-949 

26,  48, 93,  892 

2,  892,  950-9GG 

12,  892,  907-976 

723-743,  892 


898 

893 

894, 896 

897, 898 
809 
9(H3 
901 
'.'02 
903 
901 
906 
906 
907 
908 
909 
910 


89 


4,896,  911 

911,913 

911 

912 

912 

913 

IW.  '.114 

190,  914 


INDEX. 


GOO 


CORONERS,  (conliituct.) 

wiliiL?«.se.s  not  entitled  to  fees, 
obeilienee  to  siilipo'na,  how  enforced, 
wlien  six  jurors  apjjear,  to  be  sworn  and  ciiargod, 
must  all  then  view  the  body  together,     . 
not  to  proceed  until  bo<ly  is  viewed, 
if  buried,  must  bo  dug  up, 

after  viewing  body,  jury  may  retire  to  some  convenient  place, 
to  summons  surgeon,  auil  may  order  post  mortem  examination, 
coroner  swears  and  examines  the  witnesses, 
proceedings  during  examination, 
wliat  testimony  proper,     .... 
testimony,  Iiow  reduced  to  writing, 
after  hearing  testimony,  &.c.,  jury  to  deliberate  apart, 
no  one  to  mingle  in  deliberations, 
but  may  take  coroner's  opinion  upon  questions  of  law, 
to  render  tJieir  verdict  in  writing, 
what  they  shall  find,       .... 
need  not  find  who  were  .accessaries  after  the  fact, 
jurors  to  sign  inquisition, 
need  not  be  kei)t  until  they  agree,  for  mon;  than  one  inquisition  may 

be  found,        ..... 
when  witnesses  to  be  bound  over, 
recognizance  to  be  in  writing,  and  signed  by  party, 
if  they  will  not  execute,  coroner  cannot  commit, 
testimony  to  be  returned  with  the  inquisition,  . 
coroner  to  see  the  body  buried,  if  none  to  take  charge 
and  take  charge  of  all  money,  &c., 
and  deliver  same  to  county  treasurer,    . 
how  disposed  of  by  county  treasurer,     . 
coroner  to  make  statement  to  supervisors,  on  oath, 
compensation  of  coroner  therefor, 
Arrest  and  Examination  of  Offenders  by, 

powers  of  coroner,  if  jury  on  inquest  find  murder,  &c 

to  issue  warrant;  direction  and  form,     . 

how  executed,      ..... 

(StC    ARRESTS    I.V    CRIMINAL    CASES.) 

if  executed  out  of  county,  to  be  endorsed, 

but  as  offence  would  be  felony,  officer  may  justify  arrest  without,  48, 

on  arrest,  prisoner  to  be  brought  forthwith  before  coroner, 

if  absent,  &c.,  to  be  brought  before  magistrate  of  same  county, 

officer's  return  should  show  such  absence,  &c., 

when  brought  before  coroner,  to  be  informed  of  charge, 

and  allowed  reasonable  time  to  .send  for  counsel, 

counsel  may  be  present  and  a.ssist  at  examination, 

if  charge  not  admitted,  witnesses  to  be  examined,  &c., 

coroner  may  examine  as  to  other  matters  deemed  pertinent,  . 

coroner  may  issue  subpcenas,      ..... 

and  must,  on  request,  issue  them  for  prisoner, 

how  served,  ....... 

prisoner,  how  kept  during  examination, 

how  kept  if  more  than  one,        ..... 

examination  of  all  witnesses  to  be  in  presence  of  prisoner, 

78 


^•11 

l'Jl,'.>U 

•jiri 
'.>\r, 

'.tlO 

'.)\r, 
010 
911, 'Jl 'J 
017 
017 
018 
020 
021 
021 
021 
022 
022 
022 
022 

0'^.3 
024 
021 
924 
925 
020 
920 
920 
027 
028 
929 

9.30 

54,o.;i 

9.32 

02, 9.32 
49,01,9.32 
933 
933 
72,  933 
934 
9.34 
934 
934 
934,  938 
9.3o 
935 
100 
936 
936 
937 


(-.10 


INDEX. 


CORONERS,  (coM/iriMff/.) 

but  wjuicssi's  not  to  l>c  j>n'sint  tlurlng  oxjuuinatlon  of  prisnmT 
wilnoasos  nwy  Ihj  kopt  sopnrntc, 

nil  jH<nion»  oxcopt  prisoner  nml  connsd  may  Im?  excUuk-il, 
mannor  ofoxaniination  «.f  witiu-.HjM'!.  ami  prlM»ncr, 
aftor  all  witm-ssrs  in  Mipport  of  cliargi-  arc  I'xaiuined,  priMoncr  lu  Im 
his  «'xaiiiii)ati<iii  t<>  Ik-  witlunil  oatli, 
to  Im-  llntt  lnfxriiu'il  of  c]iarg<»,     . 
ami  that  ho  Is  at  lilnTty  to  roft>si<  to  answer,     . 
if  he  conseMt.<<,  his  answers  to  he  redneed  to  wrilinp, 
and  when  corrected  l>y  him,  to  be  siijned  by  coroner, 
alter  prisoner  examined,  his  witness  to  be, 
in  same  manner  as  witness  for  the  people, 
l>risoncr  may  be  assisted  therein  by  counsel,     . 
jiowers  and  duties  of  coroners  as  to  accomplices, 
w  hen  prisoner  to  be  discharged, 
when  he  may  be  conunitled, 
when  coroner  to  bind  w  itncsses, 
may  in  certain  cases  require  sunties,     . 
infanta  and  married  women  may  be  compelled  to  give  sureties, 
recognizances  to  be  signcfl  by  parties,    . 
witness  refusing  to  execute,  to  be  committed,    . 
when  and  where  recogniz.-ince  to  be  returned,  . 
Execution  or  Trocess  where  Sheiuffs  are  Parties: 

when  sheriff  party  to  suit,  process  to  be  executed  by  coroner, 

when  sheriir  not  deemed  a  party,  ....     2,180, 

powers  and  duties  of,  s.ime  as  sheriff  in  serving,  &c.,  .  .         'JoO, 

may  serve  on  sheriff,  though  he  is  his  dejiuty,  . 
l)enalty  for  refusing  to  serve  process  of  surrogates, 
where  execution  asainst  sherid",  court  may  appoint  person  to  execute 
such  iKjrson  to  be  deemed  coroner,  &c.,  ... 

when  coroner  interested  too,  elisors  to  be  appointed,    . 
when  process  directed  to  the  coroners,  &c.,  any  one  may  act, 
when  replevin  agjiiast  sheriff,      ..... 

how  to  .•vrrest  sheriff,        ...... 

may  take  bond  on  arrest,  or  for  liberties, 

where  sheriff  is  in  custody  and  an  attachment  is  issued,  should  retun 
that  fact,        ....... 

and  court  will  order  an  alias  attachment  and  h.-ibcus  corinis,  C29, 

not  bound  to  oliey  unless  fees  are  paid  and  bond  given, 

(.S<f    HADEAa    COBPL'S,    *C.) 

when  sheriU'  arrested,  how  confined  for  w.-uit  of  bail,  . 

coroners  liable  for  escapes  in  same  cases,  and  to  same  extent  as 

hheriffs, %8, 950,  %1, 

when  may  let  hheriir  to  liberties, 

when  .III  eseajx',  ..... 

when  iMinds  taken  by  him,  Ac, 

on  arrett  of  .inother  by  <ijroner  at  suit  of  .sherilf, 

bow  kept  and  how  let  to  liberties, 

on  coroner  delivering  a  prisoner  at  jail,  will  have  disrliarged  his  fluty, 

bow  one  conflne<l  on  i  xi  c  iiii>>ii  in  Mill  .•i".iiii>l  sluiill'  when  judgment 

la  for  him,  .     . 


937 
Wl 
937 
938 
939 
939 
939 
939 
939 
939 
9-10 
940 
940 
941 
942 
943 
944 
946 
94G 
948 
947 
948 

2,950 
787,  950 
953,  964 
950 
748 
951 
951 
952 
953 
956 
950 
950 

950 

789,960 

GOO 

967 

904,  906 
959 
959 
9C0 
901 

902- W4 
906 

906 


INDEX. 


cu 


CORONERS,  {contimuil.) 

WuKN  TO  ExKCUTE  OfFicK  OF  SitEfirrr : 

wliuii  no  sheriHor  under  .slicriH"  to  cxocute  duties  of  Hhcrifl, 

wlien  nioiT  than  oni-,  county  judge  to  dcsij,'n;ito  who  to  art, 

how  to  be  designated,      ..... 

to  cxecuto  bond,  ..... 

If  stich  coroner  refu.so  or  neglect,  county  judge  to  dcsigjiatc  another 

if  but  one  coroner,  he  .shall  execute  duties  on  giving  bond, 

if  ho  neglect-s,  county  judge  may  appoint  a  jirnper  iktsoii, 

appointment,  how  niaile,     .... 

county  clerk  to  give  notice,  &c., 

person  so  a|)i>ointed  to  give  bond, 

until  Homo  one  so  designated,  &c.,  gives  bond,  all  the  coroners  may 
act,    ....... 

.dl  such  persons  subject  to  same  duties,  &c.,  .is  sheriffs, 
RiciUTs  AND  Liabilities  of, 

same  as  sheriffs,  in  same  cases, 

11,  600-031,  72.0-74:},  748,  829,  884,  887,  888,  889, 

(Sec    SHERIFFS,    ACTIO.NS    AGAI.NST,) 
{S'.C    SHEUIFFS,    ACTIO.NS    BY,) 

COUNTY  CLERK, 

to  notify  .sheriff  of  his  election, 

coroner 

tliat  he  is  designated  to  discharge  duties  of  sheriff, 

one  appointed  to  till  otliee  by  county  judge, 
oath  of  office  of  shcrill  to  be  likd  with, 
coroner 

under  sheriff  &c., 
appointment  of 

sheriffs' bonds  to  be  ai)proved  of  by, 
shcrills  to  file  notice  of  place  of  office  with, 
if  not,  jiapcrs  may  be  served  on  clerk  or  his  depiity, 
copy  of  indictments  presented  to  governor  for  reijuisition,  to  be  ccr 
tifled  by,       ...... 

.and  signature  of  magistrate  to  affidavit, 

record  of  conviction  of  vagrants  to  be  tiled  with, 

not  to  disclose  finding  indictment, 

when  and  how  to  draw  jurors,    .      •     . 

to  certify  the  list,  ..... 

clerk  and  sheriff  to  furnish  copies,  on  payment  of  fees, 
misdemeanor  to  commit  any  fraud  in  drawing  juries,  . 
when  clerk  of  New  York  to  draw  new  p.mels,  . 
to  report  .i.s  to  summoning  of  jurors  by  sheriff  in  New  York 
duty  on  dr.awing  foreign  jury,    .... 

designation  of  jail  of  other  county,  to  be  filed  with, 
certificate  of  execution  of  criminal  to  be  filed  with, 
to  be  informed  when  insane  prisoner  is  cured.  . 
chattel  mortgage  when  to  be  filed  with, 
lien  on  ships  to  be,         . 
notice  of  homestead  exemption  to  be,    . 
executions  issued  by,  to  be  returned  to  his  office, 
and  certificate  of  sale  of  real  estate  to  be  filed  with,    . 


12,  W7 
W7 
'.»r,7 
.T.'.tGH 
Wl'.t 
'.(70 
'.•71 
•Jl'j. 
•.)12 

07:; 
074 


054,  957 


1 

881 

067 

072 

3 

SS4 

14 

14 


83 

84 

106 

150 

150, 160 

160 

160 

161 

168 

1107 

160 

215 

278 

22t) 

451 

1100 

42,  403 
489 


612 


INDEX. 


COUNTV  CLERK,  (r.yntinuf,!.) 

nUo  aiiy  .iv-igiiinoiil  tJnTi>of, 

lo  cvrllfy  cojiy  I'f  ilin-kcl  «nil  mortp.-ific,  to  eiinblc  parly  to  rcdcciu, 

cortillcalo  of  rvtlciuptimi  lo  Ih<  lllod  with, 

lo  flio,  without  fi-f,  nnUlAvit  of  Jmprlaonwl  debtor, 

to  give  notice  of  iliTtion.H,  .... 

loslimoiiy  anil  in<|ui!iition  of  coroner  to  l>c  flleil  witli,  . 
COUNTV,  MVli^IOX  OF, 

when  vacates  otUce  of  sljeriir,     ..... 
coroner,  . 

when  |»roccss  executed,  as  if  not  divided, 
COUNTY  JUDGE, 

{Sec    JIDGK,    COUNTV,) 

COUNTY  TKE.VSURER, 

fines  imposed  on  gamblers  and  proceeds  of  property,  to  be  paid  to, 
;ill  fines  imposed  by  courts  of  siwcial  session,  except  in  Alb, 

New  York,  to  be  paid  to,    . 
fines  imposed  by  court.s  of  record  to  be  paid  to, 
to  pay  for  mati-rial  to  keep  disorderly  persons  employed, 
what  to  l>c  paid  back  to,  ...  . 

when  to  issue  warrant  jigainst  collector  of  taxes, 
duty  of  sherifl'  thereon,  .... 

what  he  sh.all  return,      .  .  .  ■ 

sheritf  may  be  attached  for  neglect, 

when  to  issue  warrants  to  collect  unpaid  taxes, 

form  of  warrant  and  effect,         .  .  .  • 

bow  sheriff  proceeded  against  on  neglect  to  return,     . 

when  to  issue  warrant  to  collect  taxes  of  non-residents, 

procee<liiig8  on,  ...... 

bheriir  may  be  attached  for  neglect, 
balance  of  procee<ls  of  distress  to  be  paid  to, 
proceedings  by,  .us  public  .ulministrators, 
coroners  to  p.ay  over  money  ;iiid  ]tn.perty  found  on  botlies,  to, 
bow  disposed  of  by, 
CONTEMPTS, 

{Sec    ATTACHMENT    FOR    CONTEMPTS.) 
{Sec    IMPRISONMENT    IN    CRIMINAL    CASKS.) 

{See  wTtness,  compelling  attendance  of,) 

{Sec    IIADEAS    corpus,    kC.) 

COURTS  HELD  BY  SHERIFFS, 

sheriffs  may  lu^ld  courts  to  execute  writs  of  iiupiiry,    . 
and  to  iMi|uire  into  cl.iim  of  property,  levied  on  or  att;»ehed, 
but  they  e.uinot  hold  any  other  court,  . 
COURTS  MARTIAL, 

sherlffit,  jailers  and  consUibles  to  execute  process  of,    . 

may  commit  for  contempt,        .  .  .  • 

warrant  of,  to  whom  directed,  .... 

how  prinoiier  eonllned,  . 

when  »nd  how  (thrrills  to  collect  fines, 

no  one  lo  l»e  im|>riH.>tii(l  on  execution. 

but  no  projHrrty  exi-inpl  from  levy, 

fees  on  warrant, 

warrant  may  be  renewitl, 


b'l'd 
618,  bVJ 
5*26 
f)C»t', 
711 

9 

'2b6 


112,117 


•my  and 

140 

G80 

•2W 

238 

691 

092 

093 

094 

095 

.     095, 090 

097 

098 

700 

701 

717,721 

7<iO,  701 

,                 920, 927 

927 

20 
26 

20 

25,  255 
266 
256 
255 
084-087 
087 
087 
088 
089 


INDEX. 


♦J13 


COURTS  MARTIAL,  (ronlmua/.) 

l>t'ii.illy  lor  rffusirif,'  l<'  i>ay  over  moncyn, 

liow  cohst.iblc  to  cxi'ciito  ccrljiiii  process, 
COURTS  OF  RECOUIJ, 

shcrill's  arc  oHiLfrH  of  courts  of  record,  lield  in  their  county,    . 

to  furnish  rooms  for  lioUliiif?,  &c.,  .... 

to  summon  constahks  to  attend  courts, 

constables  to  attend,  &c.,  imder  penalty, 

sheritls  to  obey  orders  of  courts,  and  execute  their  process, 

and  see  that  constables  do  their  duty,  &c., 

sheriU's,  deputies  and  constables  to  act  as  criers,  when  none  appointed 

no  fee  allowed  therefiir,  ...••• 

sheriH  to  receive  no  compensation  for  attending  courts, 

except  recorder's  court  of  Utica,  and  city  court  of  Brooklyn, 

district  attorney  to  issue  precept  for  oyer  and  terminer, 

duty  of  sherilf  thereunder, 

return  to  precept,  .... 

reports  to  be  made  to  oyer  and  terminer  and  sessions,  of  prisoners  in 
jail,  «&c.,       ..... 

no  ollicer  of,  to  disclose  finding  indictment,     . 

what  not  deemed  a  disclosure,  . 

to  summon  jurors  for  courts, 

(Sec    JUROHS,    DRAWLVG    AND    SU.MMO.MSO.) 

to  report  convictions  in,  to  secretary  of  state,    . 
form  of  report,     .  .  .  •  • 

COURTS  OF  SPECIAL  SESSIONS, 

no  duties  imposed  on  sherills  in,  .... 

except  where  a  prisoner  arrested  by  one  elects  to  be  tried  by, 
and  have  same  power  as  constables  in  executing  judgments  of, 
if  prisoner  elects  to  give  bail,  has  twenty-four  hours  to  give  it, 
how  detained  in  meantime,        .  .  .  •  • 

{Sec    BAIL    IN    CRIMINAL    CASES.) 

when  court  convened,  prisoner  to  be  brought  before  it  and  detained 

by  ollicer,    ..•••••• 

if  he  elects  to  be  tried  by  jury,  court  to  issue  venire,  . 

to  be  directed  to  constable  or  marshal, 

who  to  be  summoned  for  jurors,  and  how,        ... 

list  of,  to  be  annexed  to  venire,  ..... 

jurors,  how  drawn,  ....••■ 

if  sufticicnt  number  not  drawn,  &c.,  court  may  direct  cMnstablL"  i.j 

suumion  others,       .  .  .  .  • 

if  venire  not  returned,  court  may  issue  another, 
after  jury  have  heard  evidence,  how  kept  together,     . 
what  judgment  may  be  rendered  iigainst  defendant,     . 
when  for  costs  against  complainant,       ..... 
sheritf  of  New  York  to  execute  judgments  of  special  sessions  and 

special  sessions  of  the  peace,  ..... 

sherilf  and  constables  of  city  of  Alb.iny,  to  execute  judgments  of 

special  sessions,       ....... 

in  all  other  counties,  judgments  to  be  executed  by  sheriffs,  constables 

or  marshals,  .....■■ 

how  warrant  must  be  directed,  .... 

fines  imposed  in,  to  whom  i>aid,  .... 


r/to 

lUftG 

liO,  148 
IIH 

ijy 

14'J 

100 

1.31,1163 

101 

loi: 

102 

io;j 
10;j 
lo-i 

100 

lOG 

20 

107 
107,158 

130 
135 
135 
13G 
137 


137 
1.38 
138 
138 
138 
130 

138 
13S 
140 

141 
142 

143 

144 

140 
145 
140 


614 


INDEX. 


COURTS  OF  SPECIAL  SESSION'S,  (continued.) 

jKMi.ihii'ji  for  tailurv,       ....... 

iu  Alli.iiiy  county,  when  one  rvcogtiizcd  lu  a|i]ic.ar,  huw  conunitlod, 

&c.,  .' 

shcritr  lo  report  to  wcn'tary  of  nuto,  conviclioiis  In,  . 

(.Sir    COtHT«    or    RKCORD.) 

CRIER. 

shoridV,  tlojmru'.s  .in<l  conxlnlili'S  to  act  .is,  wlien,  151, 

to  rvcoivo  no  con>|>cnsAlion  Ihorvfor,      .  .  .  .  . 

crier  l<>  !>»•  ,i|i|Miiiitctl  by  county  judgo,  .  .  .  . 

CRIMINAL,  EXECUTION  OF, 

(.StC    EXKCUTION    or    8KNTF.NCE.) 

CRors, 

wlicn  ni.iy  be  sold  as  jK-rson.-il  projwrty,  .  .  .  . 

wlicn  a.s  j>;irl  of  tlie  realty,         ...... 

righUi  of  officer  and  purchaser,  ...... 

CORPORATIONS, 

bow  summons  served  on,  .....  . 

from  justice's  court, 

under  bighway  laws,        .  .  .  . 

on  foreign  corporations,  . 

(&C    ATTACHMKNT    AGAINST    FORKUiN    CORPORATIONS,    »C.) 

how  attachment  executed  on  stock,  &c.,  in  corporation,  .         37 

shares  in  bank  or  library  cannot  be  levied  on  or  sold  ou  execution, 
nor  franchise  of  corporation,      ..... 

shares  in  building  iissociations,  when  cannot  be  sold,  . 
stockholders  ni.ay  purch.i8e  at  sheriffs'  sale,  corporal*  property, 
CUSTODY  OF  TUE  LAW, 

on  arrest  on  process,  party  in  custody  of  the  law, 

and  cannot  be  re-arrested, 

if  officer  .allows  prisoner  to  be  taken  out  of  his  hands,  an  escaiw, 

even  when  arrested  on  criminal  ch.irge, 

how  on  civil  process,      ...... 

goods  levied  on,  are  in  custody  of  law, 

otherwise,  if  levy  irregular,  &c.,  ... 

goods  attached  by  constable  in  custody,  &.C.,     . 


110,082 

117 
157, 168 


U\^8,  11G3 

151 

1103 


412 
•112 
437 

360 
1004 
1(174 
1104 

1,  SSO,  386 

4C6 

4G5,  1170 

4C4 

471 

08,804 

68 

CS 

1018 

08,304 

425,440 

431 

1010,1011 


D 


DAMAGES, 


DEATH, 


(See    C0N8TADLK8,    ACTIONS    AOAINST,) 

{ike    HIIKKIFPS,    ACTIONS    AOAINST,) 

{Sec     BMERIPPS,    ACTIONS    DV,) 

of  sherilT,  vac.ites  office  of  deputies,       .... 

but  not  of  under  sherilf,  ..... 

when  one  menaees  another  witli  <leath,  oflieiT  may  arivst, 
not  murder  to  kill  officer  in  execution  of  vohl  process, 
olherwlw,  If  party  wantonly  strike  with  destructive  weapons, 
or  if  procciw  U  regular,  and  executed  in  regular  manner, 
if.  In  such  cAJie  Olio  is  unavoid.-ibly  killed  in  resisting,  will  be  justifl:i 
ble  homicide,  ...... 

when  officer  not  JuHtifled  in  killing,      .... 


15,  i: 


15 
631 
48 
63 
63 
64 

04 
07 


INDEX. 


615 


DEATII,  {cmlinucd.) 

killing  II  jiriMOiier  wlio  rvss.iiilts  tlie  ket-per  when  seeking  to  escape, 
ju.sliliiiliU",    ..... 

how  iiuiiisluiiciil  ofcU'.ilh  iiiflicU'd, 

deaths  conceniiiig  which,  coroner  to  inquirf,  . 

wlicn  nauju  of  juror  i.s  drawn  who  is  deiwl,  slip  to  be  destroyed, 

bail  may  bo  exonerated  on  death  of  principal, 

but  death  after  escape  will  not  excuse, 

etlect  of  death  of  parly  on  is-suing  execution,    . 

if  one  die  while  changed  in  execution,  new  one  may  issue, 

when  debtor  dies  after  sale,  his  heirs,  &.C.,  may  redeem, 

where  one  entitled  to  a  deed  dies,  w  ho  to  receive  it,  . 

when  actions  cannot  be  maintained  against  representatives  of  bhcriDT, 
DECREE, 

(iStC    SALE    OF    REAL    ESTATE    UNDER    DECREE.) 

DEED, 

{Sec   SHRRirF'a  deeo.) 
DELIVERY  OF  OFFICIAL  LOOKS  AND  PAPERS, 

w  hen  old  sherifl"  or  other  officer  refuses  to  deliver  to  successor,  how 
obtained,      ..... 

required  by  order  to  show  cause  before  judge,  &c., 
if  shall  m;die  aftidavit  of  delivery  over  of  all  books,  &c., shall  be  dis 
charged,       ....... 

if  not,  to  be  committed  by  warrant,  &c., 

and  judge  may  issue  search  warrant  to  sheriff  or  constable,    . 

warrant  to  direct  search  to  be  made  in  day  time, 

on  being  brought  before  ofticer,  shall  be  delivered  to  claimant,  &c., 

but  title  of  claimant  must  be  clear  from  all  doubts  before  he  acts, 

else  proceedings  must  be  by  quo  warranto, 

same  proceedings  to  be  had  when  one  intrudes  into  office, 

duties  of  officers  under  warrant,  .... 

duties  of  officer  on  warrant  for  delivery  of  books  and  papers  belong- 
ing to  canal,  &c.,    .... 

DEPOSIT, 

(See    ARREST    AND    BAIL    UNDER    CODE.) 

DEPUTIES,  ACTIONS  AGAINST, 

tliey  are  criminally  liable  like  the  sheriff  for  any  violation  of  duty,  . 
for  the  commission  of  any  act  prohibited,  .... 
for  extortion,      .....■■• 

{Sec    SHERIFFS,    ACTIONS    AGAINST,) 

also    civilly    liable  for    interference    with    rights  or  property    of 

another,        ..,,... 
and  such  action  may  be  against  them  or  the  sheriff,  or  both, 
but  no  action  can  be  maintained  against  them  for  mere  breach  of  duty 
or  for  neglecting  or  refusing  to  make  a  levy,    . 
or  to  discharge  one  on  bail, 
or  for  taking  insufficient  bail,    . 
nor  for  an  escape,  .... 

nor  for  neglect  to  return  process, 
nor  for  a  false  return,    .... 
nor  fur  refusing  to  pay  over  money,  &c., 
otherwise  if  they  have  promised  to  pay, 


212 
270 
WJ\,b'db 
100 
340 

401 
404,  482 
GW 
52'J 
863 


8,  G02 
8 

8 
8 
8,  CC2 
8 
8 
8 
8 
8 
062 

CG3 


19 
19 
19 


19 
19 
19 
19 
19 
19 
19 
19 
19 
19 
19 


616 


INDEX. 


hof  <lutv  of  llio  sluTifr.l.Utcr 


PErUTIES,  ACTIONS  AGAINST, 

if  ihi'  brf.u'h  t>f  duty  uf  tlfpti;; 

alone  is  Hnble,         ...... 

but  in  .ill  .HUih  cvnoa,  drputy  l.t  li.-iblo  to  the  NhcrilT, 
{See   siieRirra,  ACTioNa  by,) 
DEPUTV  SIIKUIFF, 

nhoriir  niftv  .ippoint  .•«  many  as  hv  may  lliink  proper, 

but  not  to  ••xrcutc  a  pari  of  tin-  olHco,  ... 

covenant  in  IiIm  bond  limiting  bis  powers  thu.'<,  void, 

under  sht-rifl"  and  di'|>utii>s,  ofllcons,  &c., 

must  poNM'.s.s  same  qn.vliflcations  ;is  shoritl's,     , 

appointment  to  be  in  writing  and  undiT  sial,    . 

.ind  bo  lik'd  and  recorded  with  county  clerk,  . 

must  .ilso  take  oath  of  office,     ..... 

misdemeanor  to  discharge  duties  without, 

cannot  practice  as  attorney,  &c.,  .... 

nor  serve  process  in  which  the  sherid' is  a  party, 

but  they  may  serve  i)roce.ss  in  which  another  deputy  is  a  party, 

cannot  purch.-ise  goods  sold  by  them  on  execution, 

every  such  purch.use  void,  ..... 

but  when  plaiiitilV,  may  bid  on  sale  by  anotlicr  deputy, 

.ngreemcnt  to  pay  sherifl"  half  the  fees  not  void, 

otherwise,  if  to  pay  gross  sum,  not  to  come  out  of  ollicc, 

they  hold  oflice  during  pleasure  of  the  shcriir,  . 

they  may  resign  to  him, 

after  resignation  can  do  no  act  to  bind  him  or  others,  . 

and  the  surety  cc.iscs  to  be  liable  for  their  acts, 

death,  remov.il,  &c.,  of  .shenrt",  vacitcs  office  of  deputies, 

but  not  of  the  under  sherilf,      ..... 

under  sheriff  .ind  deputies  execute  .ill  ministerial  duties  of  shoritf, 
but  sherilf  or  under  sherilf  must  .ittend  ujwn  execution  of  criminal, 
and  upon  the  drawing  of  jurors,  .... 

all  acts  of  deputies  to  be  done  in  n.ime  of  slicrilT,  .  1 

when  under  slieriff  discharges  duties  of  office,  done  in  Ids  own  n.ime, 
ra.iy  complete  execution  of  process,  commenced  before  expiration  of 

office, 
but  othenvisc,  if  they  resign,  &c.,  .... 

cm  do  no  ;ict  after  the  relation  h.is  ce.ised,  to  affi'ct  sherilV,    . 
under  sherilf  and  deputies  give  to  the  .sherill",  bond,  &c., 

{See  BONns  or  cndkr  siiEKirr,  nKPLTiEs  and  jailkrs.) 
hheriffmay  .ilbjw  his  subordinates  a  fmrtion  of  i>er(iuisites  of  office, 
and  such  agreement  m.iy  be  .1  jiart  of  the  bond, 
but  agreement  to  allow  sherilf  a  sum  in  gross,  not  payable  out  of  the 

lieniuisites,  void,     ...... 

jiowers  of  dt'puly  ce.-we  when  those  of  princi]>al  ce.uso, 

all  process  in  their  bands  to  be  executed  by  under  sherifl", 

and  ol«l  deputies  not  authorized  to  act  for  hin>  without  new  appoint 

ment,  ....... 

but  if  ihc-y  continue  to  act,  may  bo  deemed  officers  de  fiuttt,  . 

h[M.>cially  charged  to  arn-st,  im  .i»o  offlisturbance  of  religioua  meetings 

l<)  .ict  a«  crier  if  none  a|i|H)inted, 

governor  m.iy  aulhori/t-  deputy  to  org.inizo  gu.ird  for  jail, 

may  execute  deed  fur  laud  sold  on  execution,  . 


I'l 
l.t 


i;; 
1:5 
\:\ 
11 

•J,  It 
11 
11 

5,14 
5 
2 


1!,  472 

2,  -172 

2,  172 

11 

11 

lo 

15 

15 

15 

15 

16,  17,  6.31 

17 

17 

17 

0,531 

17 


6,  17,  89,  681 

17,  39,  531 

17,  o'J,  531 

19 


21 
21 


11.21 


12, 


93 

151,  1103 

217 

531 


INDEX. 


017 


■  tCTIOM. 

DEPUTY,  SPECIAL, 

tlie  Hlierill' .111(1  unilershorinr may  (It'pnlizo  sp<^rial  (l<"]ititics,  .  .  13,10,67 

but  not  one  to  do  any  of  tlioso  acts  the  slicriU'or  i^'cncral  il<iiuty  nnist 
perform,       ...... 

the  appointment  mast  Vk!  in  writing,     .... 

but  need  not  be  under  seal,  nor  filed  with  the  county  clerk,    . 

nor  n<ied  he  take  the  oath  of  office,       .... 

sheriff"  should  recpiire  .security  from,     .... 

must  show  his  warrant  when  required, 

may  be  appointed  to  summon  jurors,     .... 

sheriff' not  responsible  for  acts  of,  to  the  party  seeking  appointment 

but  he  is  to  other  parties,  ..... 

appointment  must  be  shown  in  action, 
DESCRIPTION, 

if  name  of  ofTendcr  not  known,  must  bo  described  in  warrant, 

search  warrant  must  particularly  describe  goods,  .  ' 

on  claim  of  personal  property,  affidavit  to  describe  it,   . 

notice  of  sale  of  personal  property  to  describe  it  generally, 

how  real  estate  described  in  notice  of  sale, 

when  sold  under  decree, 

if  insufficiont,  sale  void,    ...... 

certificate  of  sale  to  contain  description, 

officer  finding  wrecked  property,  to  publish  notice  with  description, 

notice  of  sale  of  wrecked  property  to  contain  description, 

warrant  for  seizure  of  li<iuor3  to  particularly  describe  the  place  and 
things  to  bo  seized,    ....... 

DETAINERS, 

when  one  in  jail,  &c.,  subsequent  criminal  process  to  be  left  with 
jailer    ......... 

where  one  is  under  arrest  on  civil  process,  sheriflF  bound  to  hold  him 
on  process  subsequeutly  delivered,  ..... 


13 

13 

14 

14 

18 

05,  309 

103 

850 

850 

851 

65,  01 
9,  80,  1138 
363 
479 
487 
537 
497 
489 
739 
738 

1138 


08 


before  discharged  sheriff  should  search  for  detainers,    . 

and  is  allowed  a  reasonable  time  therefor, 

if  any,  will  be  an  escape  if  he  allows  him  to  go, 

otherwise  when  defendant  is  on  the  limits  and  leaves  at  the  time  of  the 
delivery  of  second  process,     ..... 
DISORDERLY  PERSONS, 

by  whom  warrant  issued,  ...... 

arrest,  how  made,    ....... 

when  party  committed, 

lunatic  not  to  be  confined  as  a,       ..... 

how  and  when  discharged,  ..... 

keeper  of  jail  to  report  to  court  of  sessions, 

powers  and  duty  of  court  in  such  case,    .... 

if  no  means  provided  for  employment  of  offenders,  court  may  direct 

expense  how  paid,  ...... 

keeper  to  sell  produce  of  labor,  ..... 

disposition  of  proceeds,     ...... 

DISTRAINING  INANIMATE  PROPERTY, 

when  distress  made,  how  kept,     ..... 

fence  viewers  to  certify,  &c.,        ..... 

notice  to  be  given  of  distress  and  sale     .... 


323,  550 
340 
346 

688 


550 

102 

102 

102,  230 
239 

103,  230 
155,  2.37 

237 
238 
238 


how  given,  . 


709 
710 
711 
711,712,713 


79 


618 


INDKX. 


•  tCTlOH. 

711 

716 

71C 

717 

71S 

71'.t 

7 'JO 

"•-•o 

7J1 

DISTRAINMNG  INANIMATE  rRnPEUTY,  (<--»i/iniW.) 

oil  i>nrty  rv>inlrini:  oIliotT  to  >v\\,  to  fkirniah  allldnvlt,  &c., 

to  loll  in  5AiiK<  inauiu  r  as  on  execution, 

procooda  how  di.ipo.nod  of, 

proceed  Jugs  on  dl^•tn•»!^  In  oilier  ca?H'a, 

property  to  bo  appraUcd, 

when  officer  to  make  return, 

what  to  n-turn  and  lUe,      .... 

di.sposition  of  proceeds,     .... 

ca-ses  in  wliirh  provisions  of  statute  ftpply, 
DISTRICT  ATTORNEYS, 

to  conduct  examination  of  cliargcs  against  sliorills,  Ac, 

{Sec  BiiKtiirra,  ciiAniiF.s  aoai.nst,) 
may  is.suo  bench  warrants,  ..... 

to  inform  against  and  prosecute  violators  of  statute  against  gaming 

violations  of  election  law  to  be  reported  to,  and  duty  thereon, 

prisoners  not  to  be  bailed  in  Erie  county  without  a.sscnt  of,     . 

to  issue  proclamation  for  oyer  and  terminer, 

shorifTs  of  each  county  to  serve  subpccnas  of,     . 

governor  may  authorize  to  organize  guard  for  jail, 

may  visit  county  jails  at  pleasure, 

to  attend  examination  as  to  sanity  of  prisoners, 

to  be  informed  by  superintendent  of  asylum  when  prisoner  restored 

duty  where  one  sentenced  to  execution  becomes  insane,  &c.,  . 

to  l>e  invited  to  attend  execution  of  criminal,    . 

to  sign  certificate,  &c.,      ...... 

to  issue  process  for  collection  of  fines  imposed  on  jurors,  &c., 

to  report  to  governor  encroachments  on  state  lands,  &c., 

to  take  proceedings  for  removal  of  occupants,  &c., 

when  habeas  coqms  issued  on  behalf  of,  need  not  pay  fees  or  give  bond,  204,  C06 

before  prisoner  discharged  on,  to  have  notice,  ....    C13,  617 

when  bond  taken  on  attachment  to  bo  prosecuted  by,  .  .  .    SOU,  801 

duty  under  liquor  law,      ......  llo3, 1155 

DISTDRBANCE  OF  RELIGIOUS  MEETINGS, 

forbidden,   ......... 

what  a  disturbance,  ....... 

all  sheriffs,  deputies,  coroners,  marshals,  and  constables  to  apprehend 

offenders  and   take  them  before  magistrate, 
judges,  &c.,  may  order  offenders  into  custody, 

arrests  may  be  made  on  Sunday,  ...... 

duties  of  officer  on  an-est,  ...... 

if  party  desire  trial  by  jury,  venire  to  bo  issued  to  constable  or  marshal, 

how  jury  to  be  .'■umnioned,  ...... 

if  jiarty  convicted,  when  and  how  to  be  committed, 
DIVISION  OF  COUNTY, 

{See  COUNTY,  DIVISION  or,) 
UOOR.S,  I5REAK1NG  OPEN, 

buildingH,  not  dwellings,  may  bo  broken  open  to  arrest  in  civil  and 
criminal  coses,  ..... 

but  door  of  dwelling  not,  in  first  instance,  in  civil  case, 

what  is  &  dwelling  house,  .... 

mu.Ht  Ihj  occujiiiMl  as  such, 

though  (amily  may  Ix;  t<-niporarily  .absent, 

prlvilfgc  extends  to  outer  door  ami  windows  only, 

what  is  oatcr  door,  .... 


10 

64 
118 
121 
131 
163 
178 
217 

220 
220 
271-273 
27G 
278 
CSO 
70G 
707 


311,430 

812. 430 
313 

314.316 
316 
310 

317,318 


INDEX. 


G19 


DOORS,  BREAKING  OPEN,  (conthnityt.) 

ofliccr  may  enter  to  arrest  or  levy,  pcaccAilly  if  he  can, 

but  not  against  tlic  owner's  Imown  wishes, 

every  one,  even  a  visitor  may  resist, 

ulien  may  l)C  brolten  open,  .... 

on  proceedings  under  claim  of  property, 

on  executing  writ  of  po.ssession,  .... 

and  warrant  for  delivery  of  canal  premises 

in  ca.so  of  forcible  entry  and  detainer, 

in  summary  proceedings,  &c., 
but  not  under  attachnient  to  enforce  civil  romedy, 
liouso  of  another  where  defen<lant  has  gone  to  escape  arrest 

tcction,  ....•• 

vhcn  may  break  open  doors  in  criminal  cases,     . 
when  under  search  warrants,  &c.,  01,  80,  117,  CO 

where  prisoner  has  escaped,  .... 

when  under  i)roccss  for  collection  of  a  penalty, 
when  bail  may,  to  arrest  principal, 
cannot  to  execute  warrant  in  case  of  bastardy,  . 
nor  to  servo  a  subjjtena  in  any  case, 

nor  to  execute  an  attachment  against  a  defaulting  witness, 
but  may  on  criminal  attachment,  .... 
when  officer  has  right  to  break  doors  should  first  require  them  to  be 


11,  'M'l,  130 
ZVl  130 

nr, 

■■'.10 

■■'S,l 

r,:,r, 

VAY.'j 

v,r,H 
077 

no  pro- 

.721 

48,  C,Z.  04 

2,  700,  lOSl,  1144 

591 

.  050. 1042 

132,342,  343,  5!)1 

lii.'jl 

17!i 

.     184.780 

779 


opened,  .  .  .  •  • 

when  in  a  dwelling,  may  break  all  inner  doors,  &c., 
but  should  (irst  demand  that  they  be  opened,     . 
when  locked  in  may  break  out, 
DORMANT  EXECUTION, 

(Sec  EXECUTION.) 

DWELLING  HOUSE, 

{See  DOORS,  creaking  open,) 


63,  64,  80,  117,  321 

.    64,80,311,319 

80,311.4.30 

.      01,320 


E 

{Sec  SHERIFF,  &1..) 
{Sec  CORONERS,  &C.) 


ELECTION, 

election  of  sheriff, 

election  of  coroners, 

election  of  constables,      ...... 

{Sec  CONSTABLES,  &C.) 

civil  process  not  to  be  served  on  election  day,    . 
this  applies  only  to  process  against  the  body,  and  not  property, 
inspectors  of  election  may  order  arrest  of  disturbers  of  the  peace, 
but  arrest  not  to  prevent  person  from  voting,     . 
inspectors  may  order  person  removed  verbally,  . 
officers  to  inform  of  offences  against  election  law, 
what  offences  prohibited,  .... 
service  of  subpteiia  in  contested  election  cases.  . 
sheriff,  &c.,  to  publish  and  serve  notice  of  election, 
ELECTORS, 

only  an  elector  can  serve  writs  of  habeas  corpus  and  certiorari, 

{Sec    ELECTION.) 

ELISOR, 

what  is,       .......  . 

when  will  be  appointed,    ...... 

ESCAPES, 

what  is  an  escape,  ...... 


1,12 

&^1-89<J 

980 

34. 302 
34 
120 
120 
120 
121 
121 
198 
744 

006 


952 
2,  951,  952 


G'iU 


INDEX. 


077 

08,74,577 
,  &0,C8,  74 


ESCAPES,  (caniinued.) 

in  civil  ca5os  may  be  vohintAry  or  negligent, 

ill  gonoral,  aftor  vulnntary  f»cn|K)  prisoner  cannot  bo  retaken, 

othorwlsc  If  cxcajH!  bo  nogligont,   .  .  .  .  • 

but  the  distinction  iUk's  not  i)ri'vall  In  criminal  caaos,     . 

and  a  prisoner  miiy  l>o  rotakon  bowcvcr  hv  escapes 

the  BherilVmust  liavo  sullliitnt  |K)\ver  to  prevent  breach  of  the  jail,  4^.,  2111 

for  nothing  will  excuse  but  act  of  God,  ....  80,  212,  694 

or  an   acoidenUl  Jlre 80,  212,  694 

or  when  broken  open  by  i)ublic  and  foreign  enemies,  .  .  .  694 

but  not  If  by  a  mob,         .......  694 

is  not  an  escape  where  prisoners  are  removed  in  ca.se  of  a  (Ire,  Sec.,  .    210,694 
nor  when  carried  through  other  counties,  Ac.,    .  .70,  303,  694 

is,  when  prisoner  is  disi  liarged  by  court  without  autliority,      .  74,  122,  687 

where  the  prisoner  is  discliarged  aa  ius-ane  and  is  not  ordered  to  the 
asylum,  ..... 

or  when  taken  out  of  custo<ly  by  other  process, 
l>onalty  for  willfully  suircring  an  cscaiKS, 
but  sheriir  not  criminally  liable  for  acts  of  deputy, 
I.v  Civil  Cases, 

what  will  be  an  escape,     .... 

releasing  an  attorney,  though  exempt,  without  order  of  court, 

leaving  prisoner  with  another,  not  an  oflicer, 

not  committing  one  forthwith  on  arrest,  . 

what  indulgence  in  such  case  not  an  escape, 

sending  a  j)risoner  to  give  testimony,  &c.,  will  bo, 

suffering  the  prisoner  to  be  taken  on  other  process, 

going  beyond  the  limits,     .... 

every  agreement  by  which  prisoners  allowed  to  go  at  large,  except  in 
the  manner  jirescrilK.'d  void,  and  ollicer  liable  for  an  escape, 

when  other  process  delivered  oflicer,  prisoner  must  bo  held  on  that 

also, 323,  340,  660,  688 

but  not  escape  where  i>rlsoncr  is  on  limits  and  leaves  when  second 
process  is  delivered,  ,  .  .... 

what  will  not  be  an  escape,        ..... 

not  where  the  party  was  absolutely  exempt  from  arrest, 
not,  to  carry  prisoner  through  other  counties  in  direct  route, 

nor  removal  of  prisoner  from  one  jail  to  another, 

nor  reniov.il  in  c.uso  of  pestilence,  &c., 

nor  where  prisoners  liberated  by  foreign  enemies, 

through  the  act  of  God,  .... 

or  an  accident^d  flre,       ..... 

not  from  second  process,  when  delivered  while  prisoner  on  limits,  and 
who  leaves,  ...... 

not  if  judgment  and  execution  are  void, 

not  when  party  uses  improper  means  to  induce  prisoner  to  leav<', 

not  liable  for  rescue  on  mesne  i)rocess, 

may  allow  prlnoner  to  go  at  large  till  relnni  d.iy,  but  not  after, 

if  he  <Ioe«t  not  have  him  by  return  day,  is  an  csciik-,    . 

may  retake  him  on  or  before  return  day, 

but  if  eMa|M-  IK  ;'liL'<iit,  may  ret;ike  him  at  any  time,  . 

if  .irrest  i.s  on  final  proces.s,  cannot  be  allowed  to  go  at  large  for 

a  moment,   ......        30,660,600,682,690 

would  iMi  a  voluntary  escape,  and  could  nut  be  rcUiken,  .  590 


. 

221,587 

08,  304,  684 

11, 

260,  578,  679,  887 

579, 829 

300 

519,653,677,598 

ourt 

1 

306 

683 

649 

649,694 

583 

684 

685 

595 


550,694 
649,  694 
300,  651 
694 
594 
694 
694 
594 
594 

550,  694 

661,694 

694 

30, 343 

843, 689 

689 

343 

343 


INDEX. 


r,2i 


ESCAPES,  {continual.) 

and  could  not  1)0  lu'ld  oven  if  he  Hurrcmlercd  hiinaclf,  ^'^^ 

and  a  liuiid  for  tlic  Innit.s  would  be  void,           ....  &'J'J 

otlicrwiso,  if  iil.iirititrcliooscs  to  iiold  him  on  old  execution,  .             .  OW 
tliuui;li  constabli!  lia.s  till  return  day  to  arrest  on  execution,  if  he  docH 

so  before,  cannot  rele.-use,    ....••  ^'-^ 
one  held  on  nie.sne  or  final  process,  may  be  permitted  to  go  within  the 

liberties  of  tlio  jail,  whether  bond  givcu  or  not,    .                        .  G"-l,  575 
but  must  not  go  beyond,            ....             500,581,582,585 


what  will  excuse  an  escape, 


593 


plaintilfmay  authorize  release,  but  .shoulil  be  in  writing,  340,551,560,  581,  682 
but  if  judgment  is  lor  a  penalty,  cannot  discharge  as  to  people's 

moiety,        . 551,580 

and  if  the  judgment  is  for  costs  only,  they  belong  to  attorney,  .  580 

plaintifl"'s  attorney  no  right  to  discharge  in  other  cases,  .         651,  552,  680 

but  may  cancel  judgment  of  record,      .....     552,  686 
if  other  person  discharges,  authority  ought  to  be  clear,  .  .  586 

if  a  court  or  officer  having  no  authority  discharges,  will  be  an  escai>e,  587 

a  justice  has  uo  authority  to  discharge  from  execution  issued  by  him,  587 

but  if  court  has  jurisdiction,  immaterial  if  proceedings  irregular,         .  587 

appeal  only  stays  proceedings,  does  not  authorize  discharge,    35, 421,  587, 1048 
when  and  where  may  retake  prisoner,  ....     633,  591 

liability  for  escape  from  arrest  on  mesne  process,        .  343,  651,  857,  869 

flnal  ....    582,  858 

good  defence,  if  he  h;is  prisoner  in  j.ail  before  suit,       .  592 

but  not  if  escape  w;is  voluntary,  without  allirmance  by  plaintiff,  592 

after  suit  iigainst  shcrift',  prisoner  may  leave  the  limits,  .  .  596 

if  sherill' has  to  pay  the  debt,  may  retain  prisoner  till  paid,  when,  596,  597,  815 
what  a  defence  to  action  by  sherilf,       .....  816 

when  judgment  against  sheriff,  evidence  of  right  to  recover,   .  .     817,  819 

who  may  recover,  .....••  818 

when  party  may  take  assignment  of  bond  for  limits,   .  .  820 

acceptance  bar  to  action  against  sheriff,  ....  822 

if  not  accepted,  suit  against  sheriff  may  be  stayed,     .  82-4 

action  for  escape,  when  to  be  brought,  .  .  ■     599,862 

action  will  not  lie  against  executors,  &e.,  ....  863 

In  Cki.minal  Cases  : 

the  distinction  of  voluntary  aud  negligent  escapes  not  applicable  to 

criminal  process,     .  .  .  •  .  .    08, 74, 677, 587 

duty  of  officer  where  prisoner  has  escaped,      ....  08 

may  retake  the  prisoner,  however  he  has  escaped,      .  .  50,  08,  74 

after  arrest  on  valid  process,  oflker  cannot  discharge  prisoner,  .  09 

if  magistrate  lets  to  bail  in  case  he  has  no  power,  will  be  an  escape, 

OS,  74,  122,  579,  587 
and  if  officer  discharge  Mm,  must  retake  him,  08,  74,  122,  579,  587 

In  OTHEii  Cases  : 

what  an  escape  when  committed  for  contempt,  .  .  .     250,  2-57 

penalty  for  allowing,       .......     250,  580 

when  committed  as  for  contempt  under  insolvent  laws,  .  .    252, 680 

what,  when  committed  under  statutes  relative  to  manufacture  of  salt,    245,  246 
what,  when  brought  up  on  habeas  corinis,        .  206,  698,  608,  614,  617,  028 

when  committed  for  penalty,  plaintiff  cannot  discharge  as  to  people's 

moiety,        ........    586,050 


622 


inhex. 


ESCAPES,  {a>ntiHUti!.) 

uhcn  (torn  arri'St  nmlor  nnn-iniprisonmoiit  art, 

when  cominill4'«l  by  L'iilio«l  SUiUi«,        ... 

when  coroijor  sulToni  ajj  i-scajh*, 
EXCUSAIILE  HOMICIDE, 

what  is,  . 
EXECUTIONS, 

(S>-«   JUtTICEs'    EXECUTIONS.) 

form  of  executions  In  civil  ncllons,        .... 

when  antl  wliem  returnable,      .... 

when  may  be  i.ssued,      ..... 

when)  to  bo  issucil,        ...... 

duly  of  hherill  on  receiving,        ..... 

to  give  party  admission  of  its  receipt,  ... 

and  to  endorse  on  it,  time  of  its  receipt, 

endorsement  conclusive  evidence  that  it  was  in  his  hand.s  at  linio, 

plaintitT  and  attorney  right  to  control  cxccuiion, 

when  execution  a  lien  on  property,      .... 

first  delivered,  to  have  preference,        .... 

when  justice's  execution,  &c.,  to  have  preference, 
priority  of  execution  may  bo  lost,  by  becoming  dormant, 
what  will  render  one  dormant,   ..... 

what  will  not,    .  .  .  . 

questions  of  this  character  should  be  settled  by  court, 
w^hen  levy  should  be  m.idc,        ..... 

theriflf  cannot  settle  or  discharge  execution  without  payment, 

when  may  take  receipt  for  property  levied  on, 

effect  of  receipt,  ...... 

sheriff  not  to  execute  process  in  which  he  Is  interested, 

cannot  pay  the  debt  and  hold  the  execution,    . 

and  if,  Ihruugh  negligence,  is  eoiuiK'Hed  to  p.iy,  cannot  enforce  it, 

when  compelled  to  pay,  sliould  jisk  court  for  relief,  . 

should  collect  execution  of  party  prim.vrily  liable, 

but  if  rights  doubtful,  not  bound  to  settle  them, 

bound  to  make  and  pay  over  money  by  return  day, 

usual  to  pay  to  party  or  attorney,         .... 

but  may  pay  it  into  court,  ..... 

must  be  paid  if  can  be  collected  by  return  day,  or  sherifl'  li.iblc  to 
attachment,  .  .  .  .  .  . 

]>ayment  into  court  after  suit,  without  acceptance,  not  sulTieient, 

but  when  suit  brought  for  goods  levied  on,  not  liable  to  plaintiff, 

amount  to  be  collected,  ..... 

not  bound  to  pay  interest  fVom  time  collected  to  retuni  day,  . 

but  mu.'il  for  the  time  he  retains  it  after, 

olhcnviHc,  If  moneys  are  stayed  by  ajipe.il, 

when  ap|H'al  to  stay  execution,  .... 

undertaking,  &e.,  to  be  given,  .... 

Kheriff  to  be  Berved  with  certificate  of  clerk, 

but  If  levy  or  arri'Ht  made,  to  be  retained, 

when  and  wliere  execution  rettirnable, 

may  return  it  within  linv,         ..... 

when  plainli:'  ui.iy  both  require  return, 

but  not  if  p.i;  ',  . 


%.'^-'.'f„j 


103 
■|0:i 
lot 
l'J3 
•105 
•J  1 15 
•ltt5 
•105 
407 
^408 
409 

■no 

111 
111 
412 
413 
414 
415 
415 
415 
417 
417 
417 
417 
418 
418 

4iy 

410 
419 

419 
419 
419 
420 
4:^0 
420 
41'0 
421 
121 
4::i 

121 
12,  122 
422 
122 
422 


623 


EXECUTIONS,  {continucl.) 

uor  plaiutiir,  if  execution  is  in  hands  of  epcclal  dcputj',  appointed  at 

liis  ivfiuost,              .            .            .            .             .            .  l-'i 

when  nulla  1)1  >n.i  may  bo  roturiicd,        .....  42:j,4lil 

how  return  .should  be  made,       ......  \'li 

what  to  be  returned  in  particular  cases,  4-'' 
EXECUTIONS  AGAINST    THK  UODY, 

form  of  execution,  &c.,              ......  A()'^,->\\ 

when  may  and  when  not  be  i.ssued,        .....  '101,. "ilO 

when  is.sucd,  if  not  void  on  it.s  face,  sheriff  should  execute,     .            .  283,010 

though  regular  on  its  face,  if  actually  void,  may  refuse  to  execute,     .  281 

if  only  irregul.ir  and  not  void,  mu!<t  execute,     .            .            .        283,  285,  640 

when  and  where,  and  who  m.iy  be  arrested,     ,            .            .        290,  &c.,  017 
when  bail  ti:ivcn,  sheriff  must  arrest,  notwithstanding  any  direction 

from  plaintiff  or  attorney,  .             .....  548 

on  arre.st,  to  be  taken  to  jail,  or  will  be  an  escape,      .            .             .  549 

sheriff  cannot  allow  him  to  go  at  large  a  moment,       .            .            .  51K) 

what  will  not  be  an  escape,      ......  549, 594 

if  ready  to  give  bail  for  limits,  need  not  be  actually  committed  to 

jail, 549 

when  arrested,  to  be  detained  on  subsequent  process,             .            .  550, 588 
but  if  ho  is  on  limits,  and  leaves  when  second  process  is  received,  will 

not  be  escape,          .......  050,  594 

when  arrested,  can  only  be  discharged  by  plaintiff,  and  should  be  in 

writing,        ......  551,500,681,582 

attorney  cannot  discharge,  without  payment,  .  .  .         551, 652, 586 

but  he  may  cancel  judgment,  when  sheriff  may  release,         .            .  652,  586 

and  if  judgment  is  for  costs,  he  and  not  plaintiff,  may  discharge,        .  586 

effect  of  taking  defendant  in  execution,            ....  553 

if  he  escape,  may  bo  retaken,    ......  553 

when  new  execution  may  issue,            .....  553 

EXECUTION  OF  CRIMINAL, 

(SfC    EXECUTION    OF    SENTENCE.) 

EXECUTION,  PROCEEDINGS  SUPPLEMENTARY  TO, 

{Sec    PROCEEDINGS    SUPPLEMENTARY    TO    EXECUTION.) 

EXECUTION  OF  PROCESS  OF  JUDICIAL  OFFICERS, 

sheriffs,  constables,  marshals,  and  other  ofBcers,  to  execute  process  of 
judicial  officers,      ...... 

penalty  for  neglect,        ...... 

when  such  officer  shall  summon  any  jury,  and  shall  be  required  by 

the  magistrate  to  attend  the  jury,  he  shall  do  so, . 
penalty  for  refusal,  or  other  misconduct, 
when  fine  imposed,  and  how,    ..... 

how  collected  and  remitted,       ... 

EXECUTION  OF  SENTENCE, 

when  one  sentenced  to  jail,  keeper  to  execute  sentence, 

prisoners  how  and  when  to  be  transported  to  state  prison, 

power  of  officer  to  require  assistance,      .  .  . 

sheriff  to  convey  prisoner  to  house  of  re(\ige,     . 

compensation  therefor,  a  county  charge, 

all  convicts  to  bo  carried  to  prison  and  house  of  refuge  at  same  time 

on  delivery  of  prisoners  sheriff  to  render  account,  &c., 

account  for  conveying  prisoners  to  prison  to  bo  paid  by  state, 

warrant  for  execution  of  sentence  of  death. 


C52 
052 

C53 
053 
054 
051 

2G3,  204 
13,265 
205 
206 
209 
267 
268 
208 
270 


021 


INDEX. 


EXECUTION  OF  SENTENCK,  (c^nttnufJ.) 

when  prisonor  U'conios  in5ano  to  hold  inqocat. 

tho   in<iuisition,      .  .  .  .  • 

when  ftMualo  sentenced  to  denth  is  pre^ant  to  call  jury, 

jury  how  formed  nnd  priK-ordincs  thereon, 

duty  of  shorlfl"  when  jjrt.toner  is  Insane  or  pregnant,     . 

if  sentence  not  executed  at  time,  court  may  bring  up  prisoner  by 
haln-as  corpus,  ...... 

how  and  when  puni.thnient  t'f  di  alli  iullicted,     . 

who  to  witness  it,    . 

officers  attending  to  ra.ikc  certiQcato  to  bo  flled  and  published, 

when  stay  of  proceedings,  ..... 

EXEMPTION. 

{See  ARREST    IN    CIVIL    CASF.8.) 

(See  PuoPERTV  exempt  fko.m  levy.) 
EXONERATION  OF  BAIL, 

(.9;c  n.\iL,  RIGHTS  op,) 
EXTORTION, 

(See    ACTIONS    AT.AINST    SHERirFS.) 
F 

FAL.SE  IMPRISONMENT, 

punishment  for,  in  certain  ca.scs,  .  .  .  •  • 

liable  for,  on  execution  of  void  process,    ..... 

or  regular  process  in  an  irregular  manner,  .... 

special  deputy  must  show  his  warrant  or  will  be  no  defence  to  action 
for, 

by  delaying  examination  of  criminal  may  become  liable,  &c-,  . 

though  arrest  legal,  may  become  liable  for  when  combine  to  extort,    . 

or  by  detaining  prisoner  to  a  future  day.  «fec.,    .... 

detaining  prisoner  on  a  justices  warrant  more  than  twelve  hoars  be- 
fore trial,  ....••.. 
FALSE  RETURN, 

sheriffs  are  liable  to  the  party  aggrieved  for  a  false  return, 

the  sheriir  is  liable  for  the  false  return  of  his  deputy,  . 

and  the  deputy  is  liable  to  him,  .  .  .  .  •  • 

but  not  directly  to  the  party  injured,       ..... 

a  return  claimed  to  be  false,  is  prima  facie  evidence  of  its  truth, 

and  the  sheriff  may  contradict  it  when  ho  brings  an  action  against  a 
deputy  for  damages  he  has  paid  in  conseciuence  thereof, 

when  a  return  will  not  be  set  aside  as  false  on  aflidavits, 

in  actions  for,  what  must  be  shown, 

what  may  be  shown  in  defence,    .... 

constables  liable  in  same  cases  as  sheriffs, 

ofliccrs  may  bo  attached  for,  to  habeas  corpus,  . 


271 
•212 
273 
271 
,273 


270 
278 
279 


30 

63,  815 

63 

C5 
77 
6'J 
5'» 

1022 

19 
19 
19 
19 
45 

-15,  10 
421 
812 
8  in 
1091 
021 


FEES, 


sbcrifTs,  coroners  and  constables  entitled  to  compen.salion   for  all 

senicei lOlM,  112J 

unless  prohibited  fmni  taking  fees,  .....  1094 

in  what  caries  not  <'iititletl  to  any,  ....  1094,1109 

not  to  receive  any  but  such  as  are  allowed  by  law,  1095 

nor  to  demand  them  until  .services  are  rendered,  .  1096 

unleM  authorized  by  law.  .  .....  1095,1124 

one  gtillty  thereof  liable  to  Indictment,  fee,      ....  1096 

duty  of  court  to  charge  graml  jury,  «.Vc.,  as  to  illegal  fees,  1096 

tho  prohibition  extends  to  civil  and  criminal  cxises,  1096 


INDEX. 


625 


vy.tr,, 


FEES,  (coiilinufd.) 

action  will  lie  against  shcrifls  for  extortion  of  deputy,  but  not  Indict 
racnt,    ........ 

taxation  of  foea  conclu.sivo  again.st  action  for  extortion, 

if  fee  is  fixed  by  law.  c.iniiot  nmintuin  action  for  extra  compensation, 

but  if  no  feo  is  tlxed,  may  recover  reasonablo  corapcnsatJon,     . 

return  to  process  evidence  of  service,  &c., 

and  may  receive  a  reward  if  docs  not  hold  proccas, 

how  county  charges  to  be  verilled,  .... 

Op  Co.vstables  : 

in  criminal  ca-ses,  same  as  she  riffs,  and  to  be  charged  tlie  same,  1100,  1107,  llliO 


1006 

nil 

l<r.»ri 
1007,  1124 
.       IG,  W>5 

lf/J7 
11. 'io.  li:}l 


for  any  service  not  otherwise  provided  for,  same  fees  as  sheriffs, 

for  attending  court  on  summons  of  sheriff, 

is  entitled  to  pay  though  a  deputy,  ,  .  .  , 

and  does  not  render  any  service  as  constable, 

issullicient  that  he  is  summoned  and  ready  to  act, 

how  paid,  therefor,  ..... 

transjjorting  paupers  to  county  poor  house, 

in  civil  cases,  ...  :  .  . 

entitled  to  poundage  on  execution  though  merely  levies, 

otherwise  if  execution  is  settled  before  levy, 

in  special  proceedings,      ..... 
Op  Coronkrs : 

as  peace  officers  and  for  taking  charge  of  wrecks,  and  for  service  where 
the  sheriff  is  a  party,  same  as  sheritls,         .... 

for  confining  sheriff  in  any  house,  ..... 

for  holiling  inqucSts,  ......  H- 

but  before  supervisors  audit,  to  be  furnished  with  statement  of  prop- 
erty found  ou  deceased  persons,        ..... 

compeni-ation  therefor,      ....... 

Of  Sheriffs: 

1.  For  sen  ices  rendered  the  state: 

■where  sherifl' renders  service  for  state,  to  be  paid  by  treasurer,  &c., 

to  pay  for  transporting  prisoners, 

rate  of  compensation, 

all  convicts  to  be  taken  at  once,  . 

for  reporting  convictions  to  secretary, 

for  arresting  fugitives  from  justice, 

when  fugitive  is  from  another  state,  fees 

executing  wan-ant  to  remove  intruders  fr 

serving  comptrollers'  notifications, 

for  serving  subpoenas,  &c., 

2.  For  services  rendered  the  county  : 
criminal  fees  to  be  charged  to  county,  when, 
when  to  town,        .... 
what  are  county  charges,  . 
for  drawing  and  summoning  grand  jurors, 
in  New  York  but  to  be  paid  in  certain  cases, 
summoning  constables, 

statement  of  prisoners  for  district  attorney  and 
returning  precept  and  jury  lists,  . 
attendance  on  certain  courts, 
support  of  prisoners  in  jail, 


to  be  paid  by  such  state, 
om  public  lands, 


court. 


llliO 
1127 
1127 
1127 
1127 
1127 
1127 
1128 
1124 
1124 
1120 


1120 
1120 
1122 

1122 
1123 


1008 
1000 
1000a 
1100 
1101 
1102 
1102 
1103 
1104 
1105 

1106 
1106 
1107 
1107,  1108 
1107 
1107 
1107 
1107 
1107 
1107 


80 


626 


INDEX. 


FEES,  {amtinued.) 

turnkey  fees,  llt'T 

removing  conrict.s  to  lioiiso  of  rif»{jo,     .....  1107 

conveying  prisoDora  to  iMiiitontlary,        .....  1107 

Boning  cTi mi nal  i>rt>ce».H,  .  .1107 

serving  sulipu-niu,             .......  1107 

monoys  ncccanarily  oxi>cn(l<'il  by  rthcriflM,  Ac,     .            .            :            .  1107 

for  .Horvlco.i  In  criminal  ca.si'9  where  no  coroi>cn8ation  Is  provided,  1107 
for  any  senicc  wliich  may  bo  rendered  by  a  constable,  same  compcn- 

.•«»tion,  .........  11"7 

giving  notice  of  election,  .  .  .  .1107 

3.  /Vr  summoning  juron  : 

for  .summoning  grand,  petit  and  special  jurors,  ....  1108 

4.  In  civil  aetiom: 

to  whom  sheriff  may  look  for  his  fees,    .....  1109 

when  must  sen'c  i>roces8  for  poor  persons,          ....  1109 

entitled  to  a  reasonable  compensation  where  no  foe  flxcd,  1097.1109 

items  of  fees,          ........  1109 

6.  On  cxtcutiflns: 

fees  to  be  collected  on  execution,                        .            .            .            .  1110 

but  not  after  execution  settled,     ......  1110 

unless  collusion,  and  plaintiir,  and  attorney  arc  irresponsible,  .           .  1110 

entitled  to  but  one  advertising  fee,         .            .            .            .            .  1110 

but  entitled  to  travel  fees,  &c.,  on  all  executions  in  his  hands,            .  1110 
if  executions  aro  issued  to  several  counties  and  levy  made  in  all, 

plaintiff  bound  to  pay  fees,  .  .  .  .  .  .1110 

so  if  execution  is  settled  after  levy,  sheritV  entitled  Wo  full  fees,  1110 

whether  property  would  pay  or  not,        .            .            .            .            .  HIO 

.so  if  levy  is  made  and  execution  set  a.sido  as  irregular,            .            .  1110 
so  where  plaintitf  directs  a  levy  on  specific  property  and  afterwards 

orders  ita  release,      .  .  .  .  .  .1110 

60  on  arrest  on  ca.  sa.,  .  .  .  .  .1110 

even  where  whole  proceedings  are  irregular.      .            .            .            .  1110 

otherwise  If  defendant  i.s  exempt  from  arrest,     .            .            .             .  1110 

and  if  he  arrest.s  on  one,  and  detains  on  another,  entitled  to  fees  on  both,  1110 

when  entitled  to  extra  compensation,       .....  1110 

cannot  charge  expense  of  .selling  goods,  .            .                        .  1110 

if  any  party  desires  auctioneer,  they  must  iwiy,           .           .  1110 

when  sheriQ  to  have  his  fees  taxed,         .....  1111 

if  taxed,  is  answer  to  action  for  extortion,                                    .            .  1111 

items  of  charges,    ........  1112 

on  sale  of  premi-ses  under  decree,            .            .            .                        .  1113 

in  other  cases 1114,1116,1116 

on  writ.s  of  pos-scssions  and  of  restitution,  &c.,  .            .            .  1114 

fees  as  turnkey,  (Stc.,          .             ......  1116 

for  k'-eping  United  States  prisoners,        .....  1116 

collecting  military  Unos,     .......  1116 

6.  On  aHarhmenli  against  foreign  corporations,  tf'C. 

items  of  fees,          .                         .             .            .  Ill" 

7.  On  irrils  of  habeas  corpus,  tf-c, 

items  of  fees,  .  .  .  .  .  .1118 

8.  In  other  cases : 

items  therefor,        .-.....,  1119 

for  services  under  the  prohibitorj- law,  .....  1166 

for  any  services  which  may  bo  rendered  by  a  constable,  same  fees,     .  1119 


INDEX. 


627 


iBCTioa. 

FELONS, 

niav  bo  arrested  at  any  time  or  j>laco,  witlioiit  warrant, 
where  a  felony  is  committed  in  view,  every  one  required  to  arrest, 
I>rol.ai)le  suspicion  of  wlio  ofFender  is,  will  justify-  arrest  by  an  oilicer, 
if  another  charge  one  with  a  felony  and  desire  olliccr  to  arrest,  will 

justify  olHcer,  ....••• 
even  private  persons  may  break  open  doors  to  arrest,  . 
and  an  oilicer  may  when,"  he  has  reasonable  suspicion,  . 
when  they  break  into  house  of  a  third  person  without  warrant,  it  is  at 

risk  of  lindinfi;  felon  there,     .  .  •  •  • 

otherwise  where  the  ollicer  acts  bona  tide  under  a  rejjular  warrant, 
but  before  breaking  doors  notice  of  object  of  coming  must  bo  given, 
if,  when    felon  resists,  any  of  the  rcsistcrs  are  killed,  will  be  justiU 

able  homicide,  ....•• 

and  if  ofTiccr  is  killed  will  be  murder,     .  .  .  • 

killing  felon,  where  he  (lies,  &c.,  when  justifiable, 
when,  in  resisting  commission  of  a  felony, 

cannot  be  let  to  bail  in  dillerent  county  from  which  warrant  issued, 
when  one  charged  with  felony,  to  be  delivered  up  as  a  fugitive, 
when  may  bo  demanded  as  a  fugitive,      .  .  ■  ■ 

FEMALES, 

(^SCC    BASTARDS,) 

males  asd  females  not  to  be  confined  in  same  room,  except  husband 

and  wife,  ....•••• 

when  one  sentenced  to  death  is  pregnaiit,  .... 

(Sec    EXEeUTION    OF    SENTE.NCE,) 

when  exempt  from  arrest  in  civil  actions,  .  .  297,  306, 1031 

when  if  married,  neither  she  nor  husband  to  be,  ...  '297 

not  to  be  imprisoned  on  justices' executions,      ....  lO-^l 

married  women  cannot  be  bail,     ....•• 
when  witness  before  coroner  on  examination  may  be  compelled  to  fiud 


48,61,932 
49 
49 


19 

r,:i 
c,?.,  04 
Cj:i,  04 


r>4 
04 
■04 
"►4 
74 


r.s. 


220, 501 
27;},  274 


333 


sureties,  .  .  .  •  • 

FIERI  FACIAS,  OR  FI.  FA., 

(Sec   EXECUTIONS.) 

(See   SALES  ON  EXECUTIONS.) 

(See   SALE  OF  PERSONAL  PROTERTT.) 

(Sec   SALE  OP  REAL  ESTATE.) 


940, 947 


FINES, 


imposed  by  courts  of  sessions,  to  whom  paid,  . 

when  onler  to  show  cause,  to  be  served  on  defaulting  juror, 

how  served,  and  when  and  where  returned, 

when  flue  imposed,  duty  of  county  clerk, 

district  attorney  to  issue  process  for  collection  of, 

contents  of  jirocess,        .  .  .  .  • 

proceedings  of  sheriff  on  such  process, 

process  of  commissioner  of  jurors  of  New  York,  how  executed, 

when  and  how  process  for  collection  of  military  fines,  executed, 

no  person  to  be  imprisoned  for  fine,  under  act  of  1854, 

but  no  property  exempt  from  levy, 

fees  on  collection  of  military  fines, 

military  warrant  may  be  renewed, 

misdemcAnor  to  neglect  to  pay  over  money  collected  on, 

fines  imposed  on  defaulting  witnesses,  how  collected,  . 


146 

678 
678 
679 
OSO 

6S0, 081 
082 
0S3 

684-080 
087 
087 
OSS 
089 
691 

194,196 


628 


INDEX. 


FIXES,  {cfintinuf.l.) 

Qiulcr  hif,'hway  laws,  ... 

{Ste  ExecCTioN  op  rROccti  or  judicul  orricEBi.) 
FIREMEN, 

when  oxeinpl  (Vom  scninf:  on  jurli'5,    .... 
FIXTURES, 

wlicn  flxlurvs  In-long  to  Iho  own««r  of  tin-  land,  cannot  be  sold  on  cxe 
rution  a.s  p<hm1m  and  challids,  .... 

othrnviho,  whoro  they  belong  to  tho  tenant, 

what  aix<  fi.xturi'.H,  ......         41 

what  aro  not  fixtures,     .  .  .  •  ■ 

FORCIBLE  ENTRY  AND  DET.VINER, 

w  hat  oUicers  authorized  to  take  cognizance  of, 

precept,  when  to  be  issued  and  how  served, 

jurors,  how  summoned,  &c., 

how  notice  of  is,suing  precept  served,   . 

how  process  for  delivering  possession  executed, 

when  court  may  award  restitution  on  certiorari, 
FOREIGN  JURY, 

{Sec   JURORS    I.\    SPECIAL    CASES.) 

FRANCHISE, 

of  a  corporation,  cannot  be  sold  on  execution, 
FRAUD, 

election  frauds  to  bo  reported,  &.C.,       .  .  .  •  • 

in  drawing  jurors,  how  punished,  .  .  .  •  • 

fraudulent  sales,  void  as  against  executions,  &c., 

in  regard  to  wrecks,  how  punished,       .  .  •  •  • 

FREEHOLDER, 

.sheritls'  sureties,  to  l>e  freeholders,        ..... 

surety  on  arrest  under  order,  to  be  freeholders  or  householders, 

80  of  surety  on  claim  and  delivery  of  personal  property, 
jurors  to  be  freeholders,  or  to  have  certain  ja-rsonal  i)roi)erty, 

appraisal  of  property  attached  to  be  made  by  sherill,  with  assistance 

of  two  disinterested  freeholders,     ....        372,  380,  882 

one  committed  on  justice's  execution,  to  be  discharged  if  not  a  free- 
holder, &c.,  6CC 

jx'rsons  appointed  to  determine  salvage,  &c.,  to  be  freeholders, 

jurors  to  be  freeholders,  iu  aisc  of  encroachments  on  highway, 

draining  swamps, 
FUGITIVES  FROM  JUSTICE, 

from  other  states,  to  be  deliveretl  up,  .... 

proceedings  for,  where  ones  llees  from  this  sUite, 

certified  copy  of  indictment  to  be  presented  governor, 

If  not  indicted,  aflidavits,  ..... 

if  Uken  before  inferior  magistrate,  to  be  certified, 

when  governor  to  grant  requisition,      ... 

jH-nion  to  \>v  designated  to  receive  prisoner,     . 

governor  al.vj  delivers  him  separate  warrant,  . 

and  should  l>e  funii^hed  with  bench  warrant,  . 

agent  preM?nt.i  reijulsition,  &e.,  to  governor,  to  whom  addressed, 

if  sulHcient,  dtc,  he  issues  warrants  for  arrest, 

duty  of  officer  under  the  warrant, 

duly  when  lasued  by  governor  of  this  sUitc, 


1076 


171,170 


IGl 
•M8 
1,  4 IG,  447 
445 

CC4 
GG5 
C6G 
067 
G68 
GG9 


4G5, 1170 

l'?.l 

101 

452 

740-742 


333 
300 
171 


738 

1077, 1078 

1082 

82 
83 
83 
84 
84 
85 
86 
80 
80 
87 
87 
88 
88 


INDtX. 


G29 


iLT  htato 


FUaiTIVES  FROM  JUSTICE,  {continued.) 

jigfiit  iiiii)0\veie(l  to  bring  prisoner  from  where  lie  fleth, 

IK'iiiilly  for  resisting,  &c.,  .... 

wlieii  prisoner  brouglit  hero,  where  to  be  t.iken, 

costs  and  e.xpenses,  by  whom  paid, 

magistrate  may  issue  warrant  for  arrest  of  fugitive  from  anotl 

found  here,  .  .  .  •  • 

and  may  commit  liiiu  to  jail,      .... 
when  to  be  discliarged,  if  not  demanded, 
magistrate  to  report  to  sessions, 

power  of  court  thereon,  .... 

governor  may  i.ssue  warrant  for  arrest  of, 

a 

GAMING, 

forbidden  at  place  of  assemblage  for  religious  worship, 
on  day  of  militia  parade, 

election, 
fourth  of  July, 
shcrifTs,  &c.,  to  destroy  apparatus,  &c., 
penalty  for  certain  acts, 

allowing  room,  &c.,  to  be  used, 

boat 
inviting,  &c.,  another  to  game, 
warrant  against  gambler,  how  executed, 
how  property  seized  and  disposed  of,     . 
when  to  be  destroyed,    .... 
when  delivered  over  to  party,    . 
warrant  against  gaming  apparatus,  how  executed, 
shcrills,  &c.,  to  inform  against  violators  of  law,  &c., 
neglect  declared  a  misdemeanor, 
GOODS  AND  CHATTELS, 

(See    PERSO.VAL    PROPERTY    SUBJECT    TO    LEVY.) 

every  thing  of  a  tangible  nature,  except  choses  in  action,  arc, 
fixtures,  when  owned  by  a  tenant,  arc, 
so  is  all  produce,  growing  or  gathered, 
but  not  grass  or  fruit  not  cut  or  gathered,  unless  belonging  to  tenant 
but  when  grass  and  trees  become  severed  in  law,  are, 
a  chattel  mortgage  not  a  severance  till  forfeiture, 
the  estate  of  a  tenant  at  will,  is  a  chattel  inta|(^, 
but  not  liable  to  be  sold  as  such  ou  execution/ 
choses  in  action  .are  not,  .  •  • 

bank  shares,  or  shares  fn  a  public  librarj',  arc  not, 
nor  promissory  notes,  &c.,         ..... 
nor  the  franchise  of  a  corporation,         .... 
GOVERNOR, 

sheriffs  may  resign  to,     . 

may  declare  the  office  of  sheriff  vacant  in  certain  cases, 

and  remove  him  on  charges,      ..... 

but  must  first  serve  a  copy,  and  allow  opportunity  to  bo  heard, 

when  to  appoint  a  person  to  discharge  duties  of  sheriir, 

may  remove  him  at  pleasure  and  api)oint  another, 

when  to  issue  proclamation  for  special  election  of  sherifl', 

may  issue  warrant  for  arrest  of  fugitives  from  justice, . 


h'J 

b'j 

01 

01 

01 
01 
01 
51 


02 
111 
111 
111 
111 
111, 112 
11:3 
114 
115 
IIG 
IIG 
IIG 
IIG 
117 
118 
118 


442 

442,448 

442 

442 

442 

442 

483 

483, 1034 

442,  465 

405 

465 

405 

9 
10. 
10 
10 
12 
12 
12 
54 


630 


i.NDEX. 


GOVERNOR,  ;     n/mM^,/.) 

when  t  >  issue  ft'quisitlon  for,     .... 

may  .uiihorizo  piinnl  fur  jnlU  whon, 

may  tliclan<  county  in  sUto  of  in.iurnH'li<>n,  Ac, 

when  to  orticr  hluTilf  to  n-niovc  IntruiK-nj  from  state  lands, 

coronors  may  n-.^ipi  to,  . 

wIkmi  m.iy  Ik-  nunovi-cl  l>y,        .... 

vacancy  in  ofllco  ti>  Ih«  AIKmI  by, 

wluMi  may  ortliT  .s|K.'cial  election  for  coroner,    . 

GR.VND  JIRV, 

(SfC    ORAWINli    AND    SUMMOMNO    JURORS.) 

to  be  charged  a-s  to  ex.ielion  of  illegal  fees, 
GUARD, 

when  guard  may  be  organiyx.>d  for  jails. 


82-91 

•J17 

37 

700 


1095 
217,218 


II 
HABEAS  CORPUS  AND  CERTIORARI,  WRITS  OF, 

who  may  prosecute  writs  of,      .                                               275,  279,  294,  COO 
attorney  general,  or  disitriet  attorney,  to  bring  up  pri.souer  for  sen- 
tence,          ........  275 

a  prisoner  who  brings  error,  may  be  discharged  on  bail,          .            .  279 

a  soldier,  when  arrested,  &c.,     ......  294 

who  may  and  who  not,  in  other  cases,  .....  GOO 

penalty  for  refusing  c<>i)y  process  by  which  one  is  held,          .            .  29,001 

by  whom  writs  granted,            ....            275,  279,  294,  002 

when  and  where  returnable,      ......  G03 

when  must  be  before  oyer  and  terminer,           ....  230,  603 

form  and  contents  of  writ,         ......  004,005 

bow  to  be  sealed,            .......  004 

where  returnable,            ......  Hoi 

how  endorsed  with  certificate  of  allowance,      .  lint 

not  to  be  disobeyed  for  defect  of  fonn,               ....  OUo 

to  be  served  by  an  elector,         ......  GOG 

officers  not  bound  to  obey,  unless  fees  are  paid,                         .  GOO 

nor  unless  bond  is  given  against  escape  and  for  fees,  .            .  GOO 

penalty  and  condition  of  bond,  .            .....  GOG 

bond  and  jtayment  of  fees,  not  necessary  by  attorney  gcner.il  or  dis- 
trict attorney,          .......  GOO 

how  writ  of  habeas  corpus  .served,        .....  007 

who  to  obey  writ,  and  how,        ......  008 

what  will  be  an  escape,               ......  008 

return  to  the  warrant,    ....              ...  GOO 

what  return  will  be  deemed  defective,  010 

when  hhould  be  made  by  old  an  1  new  sheriffs,  010 

arctuni  ImiHirta  verity,  and  need  not  be  supported  till  impeached.    .  010 

when  It  may  Imj  amended,          ......  010 

where  parly  nick,  return  must  be  verified,  Gil 

]iow  priiioniT  dei.iineil  until  decision,    .....  008,012 

plalntifl's  alloniey  to  be  notified  l)eforc  discharge,  G13 

if  in  criminal  cA»e,  district  attorney,     .....  013,  C17 

when  prisoner  to  Ik*  reni.inded,  015 

when  to  Ihj  discharged,                                                                        CM,  GIG,  017 

when  not,  617 


INDEX. 


g:u 


HABEAS  CORPUS  AND  CEIITIOKAIII,  WKITS  OF,  (fonlimu,!.) 

if  ofllccT  1i;ls  ho  juiisiliiLiun,  tliscli.tr^'i:  void,  ;iii(l  Hhcrill'  »lio)iI<l  not 
obey,  ....... 

if  (lotiiiiKMl  on  crimiii.kl  »,Ii:ufj(',  iii.iy  be  let  to  b;iil,  or  rciuatiJcd, 

iii.stv;iil  of  habcius  CDrims,  teilioniri  iiiiiy  he  issued, 

wlieii  luirty  may  be  let  to  l)ai],  .... 

on  refusal  to  tibey  writ,  niay  be  attached, 

and  so  may  be  attached  for  false  return, 

how  and  when  to  be  committed  therefor, 

precept  may  bo  issued,  .  .  .  .  ■ 

power  of  oflicer  on  attachment  and  precept,     . 

discharge  may  be  enforced  by  attachment, 

penalty  for  disobeying,  ..... 

wlien  warrant  may  bo  issued  to  bring  up  party, 

one  discharged,  not  to  be  imprisoned  iigain,     . 

misdemeanor  to  con\niit  knowingly, 

remove  prisoner  to  avoid  service  of  habca.'i  cori)U.s 

not  liable  to  civil  action,  for  allowing  one  to  go  at  large  on  habexs 
corpus,         ..... 

one  in  conflnement  may  bo  brought  up,  to  be  punished  for  contempt 

wiien  insolvent  in  contempt,  not  to  be  discharged  on,  . 
HABEAS  CORPUS  AD  TESTIFICANDUM, 

every  court  of  record  may  issue,  to  bring  up  prisoner  to  testify, 

but  not  when  under  sentence  of  felony, 

and  judges  of  supreme  court,  &c.,  returnable  before  any  court,  &c., 

or  returnable  before  a  justice  of  the  peace, 

and  by  a  referee  or  commissioner,  to  inquire  concerning  one  on  whose 
life  an  estate  depends,        .... 

when  it  may  be  issued  to  bring  up  one  in  a  criminal  case, 

fees  to  bo  paid  and  bond  given,  before  oflicer  required  to  return  writ 

but  not  when  issued  on  behalf  of  attorney  general  or  district  attorney 

duty  of  officer  on  whom  writ  is  served,  ... 

when  prisoner  to  be  remanded,  .... 

courts  m;»y  order  up  i)risoner3  without  writ,     ... 
HABITUAL  DRUNKARDS, 

(6tC    CONSTABLES,    DUTIES    OF,    IN    SPECIAL    CASES.) 

HOMESTEAD, 

{Sec    SALE    OF    REAL    ESTATE.) 

HOUSE, 

{Sec   DOORS,    BREAKING    OPEN,) 

HOUSEHOLDER, 

who  is  a  householder,     ...... 

certain  property,  exempt  from  levy  when  owned  by, 
surety  on  arrest  under  order  to  be,        .... 

so  of  surety  on  claim  and  delivery  of  personal  property, 

surety  to  sherifl'  hi  case  of  attachment  against  foreign  corporation 

to  be,  , 

sureties  for  the  limits  must  be  householders  of  the  county, 

HUSBAND  A:SD  WIFE, 

may  be  confined  in  same  room  in  jail,  .... 

when  neither  hu.sband  nor  wife  can  be  arrested, 

whcu  goods  of  wife  may  be  sold  on  execution  against  husband, 


611 
C18 
C19 

(;20 

C'.il 

o-ji 

G22 
GllU 
023 
C2.3 
C21 
G2;5 
020 
027 

028 

029, 789 

058 

201 
201 
201 
201 

201 
202 
20.3 
203 
204, 205 
200 
207 


402 

402,  403 

333 

300 

383 
570 

220,  501 
297 
442 


632 


INDEX. 


lung  prisoners, 


1 
II>LE  AND  TIIUANT  CHlMiKK.N, 

{Sff  coyiHTxni.f.n,  ioi.k  a.sij  trcant  children.) 
IMrRISOXMENT  IN  CIVIL  CASKS, 

tluty  of  jailer  when  ono  cuiuinitUMl  In  civil  cjiso, 

not  to  suirvr  prisoner  to  go  nl  larjjt', 

how  pri5uncrB  to  In;  confine*!, 

to  Ik?  lunintaineJ  at  tliclr  own  exiM?nso, 

jailer  not  to  receive  any  thing  for,  &c., 

penally  for  violating  slatule  concerning  manner  of  kec 

to  keep  Uniteil  Stales'  prisoners,  ami  how  answerable  therefor, 

when  inst>lvent  ^li^cha^ge(l,  to  be  released  without  detention  for  fec«, 

wlien  and  how  ]»risoner  on  justice's  execution,  discharged, 

if  such  prisoner  is  a  freeholder,  to  remain  in  jail  till  debt  paid, 

when  prisoner  to  be  charged  in  execution,        .  .  .  . 

how  and  when  to  be  assigned  to  new  sherift',     .  .  .  . 

if  on  limits  and  not  assigned,  when  may  go  at  large, 

wlien  and  how  prisoners  may  be  delivered  over, 

one  discharged  on  habeas  corpus,  not  to  bo  recommitted, 

how  ami  when  sherifl'to  be  conflned,     . 

when  prisoners  confined  at  suit  of  sherilT, 
IMrRISONMENT  IN  CRIMINAL  CASES, 

wlio  to  be  conflned  in  county  jails, 

keeper  to  see  that  lie  has  authority  to  receive, 

to  keep  daily  record  of  commitments  and  discharges, 

how  prisoners  to  be  kept,  .... 

when  not  to  be  removed  by  habeas  corpus, 

court  may  order  prisoner  up  without  habeas  corpus,    . 

when  prisoner  discharged,  if  no  bill  found, 

to  be  released  without  i)ayment  of  fees. 

United  States'  prisoners  to  be  confined  in  jails, 

jmprisoimient  of  disorderly  persons,  and  persons  conflned  for 
sureties,  &c.,  ..... 

reports  to  be  made  to  courts,     .... 

disorderly  i>crsons  to  be  employed, 

lunatics,  how  conflned,  ..... 

how  father  and  mother  of  bastards, 

one  committed  under  non-imprisoiniient  act,     . 

how,  under  proceedings  supplementary  to  execution,  . 

none  to  be  committed  for  costs,  except  attorneys,  &c., 

nor  for  non-payment  of  military  fine,  under  act  of  1854, 

apprentices,  how  ami  when,       .... 

how,  for  violation  of  excise  law, 

prohiljjtory  law,    . 

laws  concerning  fisheries, 

laws  concerning  manufacture  of  salt, 

trespawK-rs  on  state  lands,  &c., 

when  for  conimilting  waste, 

when  for  contt^rniJl,        ....  219-256, 

when  for  contcni|«t,  not  to  be  discharged, 

when  may  Ix;  diM-harjjiMl,  .... 

when  slH'riffs  conimitt<-<I  for  contempts, 

when  pri.wucr  cscajies,  to  be  pursued,  . 


56'J 

600 

5G1 

502 

502 

503 

504 

505 

500 

500 

507 

G 

7 

7 

025 

021,  957-950 

961,902,906,900 


223 
224 
225 

220-229 
230 
231 
282 
233 

234. 235 


want  of 


057,  795 


230 
237 
238 
239 

240-242 
044 
249,  259,  048 
777 
087 
243 
214 
.  1151 
244 

245, 240 
247 
248 

797,  798 
257 

25H, 269 
021 
200 


114 


633 


IMPRISONMENT  IN  CUIMINAL  CASES,  (amtinued.) 

when  let  to  bail,  J!iil<!r  to  (lisoliargo,     .... 
reports  of  i)risoiicr8  ill  jail,  to  be  inado  to  courLs, 
sentence  of  death  to  be  executed  within  prison  walls,  &c., 
when  one  sentenced  to  jail,  keeper  to  execute  sentence, 
not  to  recommit  one  discharged  on  habeas  cori)as, 

INDEMNITY, 

(&«    BONDS    0^'    INDr.MNITV.) 

INDICT.MENT, 

ufur  indictment  no  place  a  sanctuary  to  party    . 

copy  of,  to  be  ccrtilled  to  governor  on  application  for  requisition, 

no  officer  to  disclo.se  finding  of,    . 

when  prisoner  to  be  discharged  if  none  found,    . 

when  and  how  prisoners  let  to  bail  before, 

when  after,     . 
INFANT, 

cannot  hold  the  office  of  sheriff,  ..... 

nor  under-sheriff,  nor  deputy,        ..... 

nor  coroner,  ......: 

nor  constable,  ....... 

but  an  officer  cannot  defend  a  trespass  on  ground  that  he  is  an  infant 

one  cannot  be  bail,  ..... 

summons,  how  served  on  one  under  fourteen,     . 

but  if  over  fourteen,  same  as  on  an  adult, 

when  a  material  witness.  &c.,  coroner  may  compel  to  And  sureties 

sheriff  may  refuse  bid  of  infant,  .  .  .  ,  , 

(See   CONSTABLES    IDLE    TND   TRUANT    CHILDREN.) 

INJUNCTION, 

(See   STAY    OP    PROCEEDINUS.) 

INQUIRY, 

(See  WRIT  or  iNat'iRY.) 
INSANE, 

when  one  may  be  arrested,  ..... 

how  to  be  confined  in  jail,  .... 

not  with  one  committed  for  crime, 

penalty  for  confining  in  other  manner,  &c., 

proceedings  when  one  sentenced  to  death  becomes  insane, 

when  one  becomes  insane  to  be  sent  to  a.sylum,  . 

how  lunatic  served  with  summons, 

sheriff  to  execute  process  for  jury  to  try  insanity,  Ac,  . 

duty  thereon,  ...... 

officers,  &c.,  of  asylum  exempt  from  serving  as  jurors, 

idiots,  &c.,  cannot  be  bail,  .... 

INSOLVENT, 

when  and  how  jurors  summoned  in  case  of, 

warrant  to  compel  attendance  of  debtor, 

if  refuses  to  answer,  to  be  committed,     . 

how  confined,        ...... 

•what  warrant  of  committal  to  contain,    . 

not  to  be  discharged  under  habeas  corpus,  (tc,  . 

penalty  for  suffering  escape  of,      . 

when  one  discharged  under  insolvent  law, 

goods  of  insolvent  when  exempt  from  levy, 
INSURANCE, 

sheriffs  may  insure  jails  of  the  county,  . 

81 


201 
165,  202 

270 
203, 201 

626 


01 

8:5 

150 

232 

128 

128,  120 


14 

882 

•       979 

1091 

833 

350 

350 

940,  947 

471 


10G0-10G3 

239 

22G 

.  239,  1004 

271,272,274 

220,  221,  687 

860 

GOO 

COO 

174 

333 

655 

656 

657 

262,  657 

252. 657 

252. 658 
252,659 

665 
459 


(331 


INDEX. 


INSURANCE  [rontitiuf.t.) 

■hfrlfrsare  not  InsunTS  of  goods  li-vlcd  on, 
INTEREST, 

t«»  1h»  co!IocIo(I  on  execution,  tip  to  time  of  j>.iymcnl,    . 

Bherifls  not  Iwtiml  to  pay.  for  drtnininj;  till  return  day, 

nor  If  roonor  is  stavi-d  by  Injunction,  &c.. 

nor  will  d.  findant  Ik<  linMo,  .... 

what  to  Ih-  pajil  on  redemption,  .... 

wIm'm  intorcst  not  to  bo  rccovorcd  ngaiiist  the  RhcrlfT,     . 
INTERRUGATOHIES, 

{See    ITTACIIMKNT    FOR    COJCFEMPT.) 

INVENTORY, 

to  l>o  m.ado  on  seizing  good.s  on  attnchment, 

when  and  what  to  be  returned,     .... 

to  W  made  of  ve.ssel  when  seized  umler  warrant, 

making  inventory  under  execution  of  property  present,  a  good  levy 

but  levy  bad,  as  to  property  not  present, 

but  not  essential  to  levy  that  inventory  should  be  made, 

though  highly  proper  to  do  so,     . 

when  made  and  served  by  constable  under  attachment, 


&()3 


•139 

4'20 
J  20 
420 
420 
512,  614 
858 


372. 

3S0 

382 

372 

380 

882 
392 

y  • 

428 
428 
428 
428 
lOOS 

JAILER, 


not  a  deputy,  nor  officer,  but  servant  of  shcrifl" 
need  not  be  appointed  by  writing,  nor  take  oath, 
not  prohibited  from  purchasini;  at  sherilT's  sale, 
holds  during  pleasure  of  sheritl',  .... 
and  gives  such  bond  as  shcrill'  may  reijuire, 

(See  BONPS    OF    UNDKR-SHKItlKF,    UKFLTIES    AND    JAII.KRS 

liable  to  sheriff  though  no  bond  given, 

penalty  for  certain  misconduct,     .... 

his  comjtensation,  ..... 

to  execute  jirocess  of  courts  martial, 

exempt  from  serving  on  juries,     .... 

treatment  of  prisoners,       ..... 

when  papers  left  for  prisoner,  when  and  how  to  bo  delivered, 

(Sec    IMI'IIISONMF.NT   IN    CIVIL   CASES.) 

(Sec  iMrniso.N.ME.NT  in  criminal  cases.) 
JAILS, 

sherifl's,  keepers  of  jails  in  their  counties, 

in  New  York  keeper  of  debtor's  jirison  only 

in  Onondaga  county  the  penitentiary  is  county  jail, 

sherills  may  oj>p(>int  jailers,  (.^c,  . 

who  to  Ihj  confined  in  jails, 

penalty  for  refusing  to  receive  prisoner,  &c  , 

to  have  ftuOicient  force  to  i»revent  e.scapes, 

Bplritu'ius  liipiors,  not  to  be  sold  in, 

when  no  Jail,  where  prisoner  to  be  confined, 

duty  of  dheriir  whi-n  Jail  destroyed,  <fcc., 

governor  may  authorize  guard  for,  when, 

when  sheriff  may  organize  temporary  guard  for, 

duty  of  sheriff  whc-n  prisoner  becomes  in.sane,  . 

who  may  Ik;  admitted  to,  .... 
JOINT  DERTORS, 

how  execution  endorsed,  executed,  &c.,  when  all  not  served, 


11 

,20 

14 

2  20, 

•172 

!■'> 

18 

20 

11 

21 

^•>. 

171 

«>1  •> 

219 

25 

208 

209 

210 

211 

208 

11 

11 

21  » 

215 

210 

217 

218 

220 

221 

222 

431, 

1031 

635 


JUDGE,  COUNTS, 

to  iipprovc  Mhoriir's  bonfl,  &c.,  wlion  no  county  cl<!rk, 

may  compel  old  Hliciill'  to  dirliver  over  proci-HH,  &,c., 

to  tuku  (Xiiiiiiiiiitioii  on  cliiirgeH  uj^uiiist  Hhurifld, 

may  issuo  wurranl.s  for  crime,  &c., 

and  ordur  disturbers  of  roligious  meetings  into  cuHtod 

duties  on  arriHt  of  one  disguinud,  &c., 

duties  under  laws  against  gaming, 

to  prevent  racing,  .  .  •  .  . 

when  may  let  to  bail,        .... 

when  may  commit  for  contempt,  . 

service  of  summons  of,  in  case  of  contested  election, 

when  to  allow  habea.s  corpus,  &c., 

when  !nay  autliori/.o  removal  of  prisoners,  &.C.,  . 

the  governor  with  assent  of,  may  authorize  guard  for  jails, 

may  authorize   temporary  guard. 

when  may  order  insane  pii.soner  to  asylum, 

may  visit  jails  at  pleasure, 

duty  when  prisoner  sentenced  to  death  is  in.sjine, 

to  be  invited  to  attend  execution, 

to  sign  certilicatc  thereof, 

may  make  order  of  arrest  in  civil  cases, 

bail  on  arrest  to  justifying  before, 

when  may  order  bail  to  be  exonerated,    . 

surety  in  replevin  to  justify  before, 

ni.iy  grant  attachments  against  foreign  corporations,  &c 

and  warrants  on  demands  against  sherifls, 

duties  and  powers  thereunder, 

may  grant  writ  of  ne  exeat, 

and  warrant  under  non-imprisonment  act, 

and  orders,  &c.,  under  proceedings  supplementary  to  execution, 

sheriffs,  &c.,  to  obey  orders  and  execute  process  of, 

powers  in  case  of  insolvents, 

who  to  execute  precept  of,  in  j)]ank  road  cases, 

duties  in  cases  of  forcible  entries  and  detainers,  . 

in  summary  proceedings  to  obtain  possession  of  land, 

in  relation  to  state  lands,  .... 

in   case  of  wrecks,  .... 

election,  when  to  give  notice  of, 

to  designate  coroner  to  discharge  duties  of  sheriff,  &c 

when  to  appoint  another  person,  . 

duties  under  the  prohibitory  law, 
JUDGE  OF  THE  SUPREME  COURT, 

(^Scc  JUSTICE  or,  tc.) 
JURORS, 

qualifications  of,  for  courts,  &-c.,  . 

to  try  sanity  of  one  sentenced  to  death, 
to  determine  if  female  is  pregnant, 
in  cases  of  encroachment  on  highways, 
to  assess  damages  on  draining  swamps, 

who  incompetent  under  liquor  law, 

whero  must  reside,  for  courts  of  record,  . 

what  good  cause  of  challenge, 

what  not,     ...... 


8 

8,  002 

10 

01,79,  07,  ll'J 

'J3 

lU) 

111 

U'J 

127,  120,  020 

187,  li-'il,  2.J2 

108 

201,002 

210 

217 

218 

220,  221 

222 

271 

270 

278 

338 

341 
358, 300 
364,  380,  381 

391 
801-306 

307 
011,04'> 

G4G 
G52-C54 
055-657 

001 
001-008 
670-4377 

707 
72;J-74:; 

744 

907-975 

971-974 

1137 


171-173 

271 

273 

1U77 

l'.>82 

1146 

172 

105,  033 

173 


636 


INDEX. 


JUROUS,  {C'tUinur.i.). 

who  exotnpt  from  serving  on  Juries,  ...  174 

who  exi-iisi'd  in  ciTtaih  cases,        ......     176,177 

who  m»y  U'  (Usdinrgi-d,     ......  170 

Dravtino  roR  Coirts  or  Rr.coHO: 

sheriff  or  umior-shcrKT  to  attoml  drawing  l>y  clerk,  16'J 

how  drawing  conducted,    .......  100 

penalty  for  any  corrupt  comluct,  ......  101 

list  of  persons  drawn  to  bt!  signed  and  delivered  sheriff,  .  100 

on  payment  of  fees  any  person  to  l>e  furnished  copy,     .  100 

SCMMOMMi    lOR    ColHTS    OP    RECOKI): 

how  long  to  be  summoned  before  court,  .....  102 

by  whom  to  be  summoned,  ......  103 

bow  summoned,      ........  104 

when  aililitional  grand  jurors  may  be  summoned,  106 

when  talesmen  may  bo,     .......     102, 167 

duty  of  ofllcer  when  he  selcctajury,        .....  170 

new  panels  in  New  York,  how  and  whin  summoned,     ,  108 

For  Colhts  or  Special   Skssions: 

by  whom  and  how  venire  to  be  executed,  .  .  .  •  138 

bow  jurors  returned,  drawn,  ....••  13'J 

In  special  cases  : 

foreign  jury,  proceedings  when  ordered,  ....  100 

on  claim  to  property  levied  on  or  attached,  how  summoned, 

20,  374,  380,  382,  438,  1037 

ofBccr  to  swear  jury  and  witnesses,  27,  374,  280,  382,  438,  1037 

the  inquisition,         ......  374, 380,  882,  438 

to  appraise  homesteads,  the  number,  &.C.,  ....  484 

In  case  of  lunacy,  how  summoned  and  duty  of  sheriff,  . 

to  try  sanity  of  prisoner  sentenced  to  death, 

to  determine  if  female  is  pregnant, 

to  assess  damages  on  opening  highways,  how  summoned, 

In  case  of  encroachments  upon  highways,  to  be  freeholders, 

bow  summoned,      ...... 

to  assess  damages  in  case  of  draining  swamps,  . 

in  plank  road  cases,  how  summoned  and  return  made,  . 

in  summary  proceedings  to  obtain  possession  of  land,  . 

In  case  of  forcible  entry  and  detainer,     . 

In  ca.so  of  habitual  drunkard,        .... 

under  prohit)itr)ry  law,       ..... 
JDBTICE  OF  SUI'RE.Mi:  COURT, 

may  compel  delivery  of  jirocess,  &c.,  to  new  sheriff,     . 

when  may  issue  warrants  for  arrest  for  crime,     .  .       G4, 

may  order  disturbers  of  religious  meetings  into  custody, 

duty  when  disguised  persons  brought  before,     . 

duty  in  regard  to  violations  of  laws  against  gaming, 

to  prevent  racing,  ...... 

may  let  to  bail  in  all  cases,  .... 

may  vihil  jails  at  j»leasuro,  .... 

duty  In  case  prisoner  fentenccd  to  death  becomes  insane, 

to  be  Invili'd  t<»  alteml  the  execution,  &c., 

attachments  may  Ix;  issued  by,     .... 
w.irrants  on  dtmands  against  ships, 

may  grant  wriu  <if  ne  ex«at,         .... 

iureli'  s  on  arrent  on  ne  <x<  at  may  surrender  principal  before, 
may  grant  wiit«  of  habeas  cor^ius,  &c.,  . 


},  05; 


000 

271 

273 

1076 

1078 

1079 

1083 

061 

076 

652,  606 

1076 

1140 

8,062 

,97,119 

93 

110 

111 

11'.) 

127 

222 

271 

270,  278 

3ti6,  380,  381 

391 

397 

.     401,102 

.     201,602 


INDEX. 


637 


JUSTICE  OF  SUPREME  COURT,  (conliniuid.) 

wlieii  to  issuu  warrant  iimler  noii-iniprisoiiiii'Mit  act, 

orders,  &,c.,  under  prococdinfjH  Mii)i>lfnifntary  to  the  execution, 

duties  of  sherills  on  excculing  process  is.sued  by, 

duties  in  ease  of  lorciblc  entry  and  detainer, 
JUSTICES  OF  THE  I'EACE. 

(S'tCTllK    HCVKItAl.   TITl-KH    CONCERNING    CHIMINAI,    l-noCKIJDINUM    AND    tONSTADI.KB.) 


cn 

0.02-664 

coi-cca 


LAND, 


LEASE, 


LEVY, 


applied 


{Sec    SALK    or    IlKAI,    ESTATK.) 

{See    HKDKMPTION.) 

{Sec    SAI.f.    OK    RKAL    KSTATE    UNDEU    DECREE.) 

{See    .STATE    LANDS.) 

{Sec    SUM.MARY    PROCEEDINCS    TO    OBTAIN    P08SEBSI0N    OF,) 

{See   CONSTABLES,    DUTIES    IN    SPECIAL    PROCEEDINaS.) 

when  jiersoiial  property  leased,  lu.iy  be  sold  on  execution, 

lands  held  by  lo;i.se,  may  bo,      . 

when  lands  so  held  may,  and  when  they  may  not  be  redeemed, 

what  is  a  levy,     ...... 

when  must  be  m.idc,       ..... 

when  goods  of  debtor  bound  from  delivery  of  execution  to  sheriff, 

the  execution  first  delivered  has  the  preference, 

but  a  levy  and  sale  on  a  junior  execution,  valid, 

and  money  to  be  applied  on  oldest, 

if  not,  sheriff  liable  to  plaintiff,  .... 

but  if  before  levy,  return  day  of  first  is  past,  proceeds  to  be 

on  la-st,         ...... 

executions  received  at  same  time,  how  ])aid,    . 
when  a  justice's  execution  will  have  preference, 
duties  and  responsibilities  of  oliiccr  on  making  levy,    . 
what  will  be  a  valid  levy,  .... 

what  not,  ...... 

when  execution  against  one  partner,  may  seize  all  the  goods, 

but  can  only  sell  defendant's  part, 

rights  of  purchaser  in  such  case, 

if  process  not  served  on  all  joint  debtors,  execution  how  to 

cuted,  ...... 

effect  of  a  levy,  ...... 

not  a  satisfaction,  unless  defendant  has  lost  his  property, 

when  i)roperty  m.iy  be  levied  on  after  relea.sed, 

a  valid  levy  on  one  execution,  .sullicient  for  all  others, 

when  a  valid  levy  under  one,  may  sell  on  all,  . 

property,  how  disposed  of  when  levied  on, 

rights  of  olBccr  on  entering  dwelling,  &c., 

{See  DOORS,  breaking  open,) 
rights  as  to  remaining  on  defendant's  premises, 
when  growing  crops  are  levied  on  and  sold, 
proceedings  when  claim  is  made  to  property,  . 
liability  of  sherilf  for  property  levied  on, 
plaintitf  not  bound  to  pay  bid,  unles.s  surplus,  &c., 
levy  necessary  to  vest  property  in  sheriff. 


410 

482 
480, 403 

425 
414 
408 
408 
400,  434,  476 
400, 434 
434 


be  e.xe 


42 


434 

434 
410 
420 
427-420 
427,420 
4.30 
430 
430 

431,434 

432, 435 

432, 435 

433 

408, 434 

434 

4.35 

4. 30 

4.37 
437 
4.38 
8,  435,  439 
430,471 
440 


G38 


LEVY,  ^.."i.'i'i :,../.) 

if  ^. •>>, I > debtors  aiiJ  U-vy  valid,  art-  in  cu^to^ly  of  llio  law  aiul  ixenipt 

Iruin  oilier  levy,        .......  440 

and  ullicer  aciiuiresj  i>|K>eial  proiK«rty  therein,  ....  140 

of  the  endorsement  ««f  levy,         ......  tlM,s07 

if  levy  invalid,  ollicer  ar«|uirc»  no  right,            ....  MO,  808 

Olid  owner  may  retjikc  them  |K"acefully,           ...  K»8 

no  levy  on  l.andM  ueces-sary  J  notice  of  sale  suflicient,  .                          .  4t*5 

LIBERTIES  OF  THE  JAIL, 

what  are,              ......             .             .  574,675 

keeiK-r  of  jail  to  exhibit  certified  copy  of  minutes,  fixing,  &.c,            .  673 

who  entitled  to,  .             .                          .             .             .             .             .  668 

who  not,  ....        8,*252,6G8, 621,067,  GC2,  900,1161 

one  committed  on  no  exeat,  not  as  of  course,    ....  400 

bond  to  Ix'  given  for,      .......  670 

keejter  should  sec  that  it  i.s  anijdc,        .....  670 

condition  of  bond  must  conform  to  statute,       ....  '>71,7G4 

if  sureties  insuflicient,  sherirt' may  commit,       ....  672 

:uid  sureties  may  surrender,       ......  672 

how  surrender  made,      .             .             .             .             .             .             .  672 

what  will  be  an  escape,               ......  674 

rights  of  shcrilV  on  escape,         ......  674 

good  defence,  that  prisoner  h;is  retunieil  to  liberties  before  suit,         .  674 

may  allow  prisoner  the  liberties  without  bond,             .             .             .  675 

and  if  he  escape,  may  recapture,           .....  675 

when  and  how  let  to  bail,  when  jail  of  other  county  is  used,  .             .  670 

a  bond  for  liberties  after  a  voluntary  escape,  void,      .            .            .  690 

but  one  after  a  negligent  escape,  good,              ....  708 

when  sheriff  let  to  the  liberties,  on  arrest  by  coroner,  .            .             .  969 
when  coroner  commitJi  another  at  suit  of  sheriff,           .                      902,903,960 


LIEN, 


attachment  not  lien  on  goods  or  laiuls,  till  levied,        .             .             .  308 

executions  from  courts  of  record  are,  on  goods  from  delivery,            .  408-411 

but  levy  necessary  to  perfect,    ......  426,  440 

no  levy  necessary  on  land.s,        ......  486 

priority  of  liens  of  executions  on  goods  lost  by  becoming  dornuint,    .  411 

an  execution  issued  by  county  clerk,  not  a  lieu  unless  for  §26,  &c.,  .  482 

a  lien  of  judgment  on  attachment  dates  from  execution  of  attachmont,  300,  482 


of  the  liens  of  judgments  on  l.mds, 

when  surplus  moneys,  lien  attaches  .is  on  the  lands  sold, 
goo<ls  pledged,  cannot  be  sold  unless  lien  is  i)aid, 
nor  if  ihey  are  mortgaged,  in  »  ertain  cases, 
liens  in  other  cises,         ..... 
LUNATIC, 

{i>ee  iNHA.ve.) 

M 
M.\Ur;H.\LS, 

for  dutie»  of, 

(.SVf  coNSKRVATOiin  (iy  thi:   peace.) 

{Sec    APrUAVa    AND    HIOT8.) 
(.Vrr    Aunr.HT    IN    ClilMIN'AL    CAHKIt.) 

{Se<  (  ouiiTii   or  HPtxiAi.  hknuion'*.) 
(Sfce  DUTtaoAM  i:  r>r  tu:i.ioioua  mcetinoii,  ac) 


.  482,492 
492 
449 

.  4oO, 451 
466-467,  1109 


INPEX. 


039 


MILITAUV, 

(Sec    COURTS    MAIiriAI..) 

wlio  exem|)t  frt)nv8crviii{j  oil  jurit'H, 

who  ;iu(l  wlicn  exoiiipt  froin  arrest, 

wJioii  sliiMiiriii.iy  call  out  in  aid,  &c.,  . 
MONKV, 

party  no  ri^'Iit  to  insist  on  specie,  on  ordinary  notice  of  sale,  . 

sliurill"  may  receive  current  hank  hills,  in  all  c,»ses,     . 

but  hank  check  not  i>aynient  on  reih-niption,  unless  money  received 
before  time  exjiiies,  ...... 

foreign  coin  may  be  received,  whci),     ..... 

and  the  parly  in  interest  may  authorize  tin-  taking  of  any  thing  else 
on  redemi)lii)n,         ....... 

gold  and  silver,  bank  l)ills,  &c.,  may  he  attached,        .  .        307, 

and  levied  on  under  execution,  ..... 

current  coin  need  not  he  sold,  hut  returned  as  .so  much  collected, 
MORTGAGE, 

(iSVc    CHATTEL    MOnTGAOF,.) 

when  .'V  judgment  ceases  to  he  a  lien  as  against, 

a  mortgage  for  the  purchase  money,  takes  precedence  of  an   oMer 

judgment,     ........ 

lands  mortgaged,  may  be  sold  on  execution,  when, 

one  acquiring  title  under  a  foreclosure,  is  a  grantee  entitled  to  redeem, 

but  a  mortgagee  is  not,  he  can  only  redeem  as  a  creditor, 

when  mortgagee  may  redeem,  .....        505, 

shcrili's'  sale  and  deed,  cuts  off  lien  of  all  junior  mortgages,  &c., 
a  mortgage  is  merged  in  foreclosure,  and  cannot  redeem  under  it, 
and  a  judgment  for  the  deficiency,  not  a  lien  on  the  mortgaged 

premises,      ........ 

proof  necessary,  to  entitle  mortgagee  to  redeem, 

certificate  of  redemption,  ...... 


.     171,170 
.     204,:{01 

:•.<;,  .",7,  1100-110'J 


•107,  175 
'175,510 

510 
510 

516 

380,  382 

442 

478 


*  482 

482 
483 
600 
500 
508,  509 
610 
510 

510 
519 


N 
NE  EXEAT, 

by  whom  writ  of,  to  be  allowed, 

to  whom  directed  and  how  executed,  . 

what  bond  may  be  taken  on  arrest, 

if  defendant  fail  to  give,  to  be  committed, 

sureties  may  surrender  principal,  and  lie  discharged,  when, 

when  sheritrmay  take  another  bond,  and  from, 
NEGLIGENT  ESCAPE, 

(Sen    ESCAPES. ) 

NON-IMPRISONMENT  ACT,  WARRANT  X'NDER, 

by  whom  allowed,  ..... 

void,  if  issued  before  sunmions  served, 

though  officer  may  execute,  if  it  does  not  show  that  fact  on  its  face, 

powers  and  duties  of  officer  under  warrant, 

what  will  be  an  escape,  .... 

'when  prisoner  committed,  and  how  confined,.  . 

when  search  warrant  may  issue, 
NOTICE  OF  SALE, 

no  sale  under  execution  to  be  made  without,  . 

penalty  for  taking  down,  &c.,    .... 


397 
398 
399 
400 
401 
402 


641,012 
041 
Oil 
043 
643 
644 
645 

470, 479 
470 


610 


INDEX. 


NOTICE  OF  SALE.  (cpntinueJ.) 

what  nolicc  nhoulil  rontAin, 

notice  of  »ali>  of  rt'jil  I'xtato, 

notice  of  nalfs  untltT  ilccrtTs, 

in  cases  of  wrciks, 

of  (listrcjis,  .... 

by  a  constable,  under  a  justice's  execution, 


:\:\. 


479 

48f.,  487 

5.%,  630 

7iy),  738 

718,  1072 

1038 


PARTXERSHIP  rnorKRTY, 

c.iniiol  bo  Mizfil  on  attarhineiit  against  one  i)arlnor,    . 

but  may  be  levied  on  and  sold  under  execution, 
PAWNED  GOODS, 

may  be  levied  on  and  sold  as  against  tlie  owner,  subject  to  the  lion,  419 

.search  warrant  for,  liow  execuleil,  ....  1084,  1086 

PEACE  WARRANTS, 

form  of  warrant,  and  by  whom  is.sued,  .... 

liow,  and  when  and  wliere  executed,     ..... 

when  surety  reijiiired,  anil  wlien  committed,    ... 

contends  of  warrant  of  cunnnitm»'nt,      .... 

when  magistrate  may  require  sureties  for  breacli  of  peace  committed 
in  his  presence,        ...... 

PENALTIES,  PROCESS  IN  ACTIONS  FOR, 

how  endorsed,  else  void,  ..... 


3G7,  380,  382 
430 


97 

98 

99 

90, 236 


101 


when  served,  and  how  executed  and  returned, 
PERSONAL  PROPERTY  SUBJECT  TO  LEVY, 

eviTV  thing  of  a  tangible  nature, 

produce  rai.sed  annually  by  labor,  growing  or  gathered, 

but  not  growing  grass  or  fruit.s,  owned  by  the  owner  of  the  land, 

otherwi.se,  if  owned  by  a  tenant, 

and  so  they  may  when  they  are  constructively  severed, 

gold  and  silver,  bank  bills,  &c., 

fixtures  may  or  may  not,  according  to  circumstances, 

may  be,  when  owned  by  a  tenant, 

but  not  when  by  the  owner  of  the  land, 

what  are  fixtures,  ..... 

what  are  not,       ...... 

when  goods  arc  pledged,  wlien  and  how  sold,  . 

when  mortgagtd,  ..... 

wlien  frau<lulently  sold,  &c.,      .... 

when  goods  are  replevied,  .... 

when  under  a  levy,         ..... 

when  valid  lien  on  the  property,  .... 

{See  rnopERTY,  exk.mpt  rno.M  b.m.k  on  kxkcition.) 
POYSICIAN, 

may  be  excused  as  jurors,  wlu-n,  .... 

jail  pliynirian  may  permit  si)irituous  liipKirs  to  be  brought  into, 

[)ri»ioners  may  be  removed  in  c.a.se  of  discusc,  when  he  certilles,  &c. 

when  female  convict  pregnant,  Jury  of  six  physicioaa  to  be  colled, 

home  and  wag«in  of,  exempt  from  levy,  . 

what  mannlaughtor  hi,    ...... 

coroner  to  subpcpna  surgeon  or  physician, 

coroner  may  CAU40  post  mortem  examination  by, 


049 
050,  1042,  1072, 1075 


442 
442 
442 
442 
442 
442 
443 
448 
.  440,401 
444,  AUy-448 
445 

•     .  449 

.     460, 461 

462 

463 

464 

456-467,  1109 


177 
•2\i 
210 
273 
4  OS 
itOl 
'.•14 
'J  19 


INUKI. 


641 


41 'J 


•  ICTIOM 

PLEDGED  GOODS, 

subject  to  s;ile  on  execution,  .... 

POSSESSION,  WRIT  OF, 

(Sir    wniT    OF    rOSSEHSION.) 

POSTPONEMENT, 

(^Si-C   ADJOURNMENT  AND  POSTPONEMENT.) 

POWER  OF  THE  COUNTY, 

when  olllccr  may  command  tho  assistance  of  others, 

30,  37,  70,  108,  2G5,  330,  3'J8,  550,  022,  700,  1100-1102 


penalty  f<>r  rofu.sinp,       ...... 

but  all  ;is3i.st  at  their  peril,         ..... 

for  if  the  oflicor  h.w  no  power  to  do  the  act,  all  are  trespassers, 

conipen.sation  of,  ...... 

when  military  of  other  counties  may  bo  ordered  out,  . 

penalty  for  refusing  to  obey,      ..... 

when  officer  may  command  a.ssistance  in  another  county, 

when,  in  arresting  disguised  persons,     .... 

when  conveying  prisoner  to  state  prison, 

on  arrest  on  order,  ...... 

on  arrest  on  ne  c.xcat,     ...... 

on  execution  of  writ  of  possession,        .... 

on  attaclnnont  against  one  who  disobeys  habeas  corpus, 

on  execution  of  order  of  governor,  for  removal  of  i)er3ons  from  state 
laiul.^,  ....... 

PROCEEDINGS  SUPPLEMENTARY  TO  THE  EXECUTION, 

order,  how  served,  ...... 

when  warrant  for  arrest  made,  and  how  served, 

prisoner,  when  committed,  and  how  conflncd,  . 
PROCESS,  EXECUTION  OF, 

shcrilTs  are  required  to  execute  all  criminal  process,    . 

but  constables  and  marshals  execute  venires  of  special  sessions, 

shcrifTs  execute  all  civil  process  from  courts  of  record, 

and  constables  civil  process  from  justices'  courts, 

sheriffs  must  not  only  execute,  but  they  must  make  return  thereof, 

{Sec    RETURN    OF    PROCESS.) 

penalty  for  refusing  to  serve  or  return, 

and  liable  also  to  the  party  aggrieved, 

to  give  party  delivering,  a  minute  thereof,  on  pajTuent  of  fees 

and  to  defendant,  a  copy  without  charge, 

misdemeanor  to  act  without  process,  &c., 

when  may  be  served,      ..... 

may  be  in  the  day  or  night,       .... 

but  no  search  warrant  at  night,  unless  it  authorize, 

when  may  be  served  on  Sunday, 

when  not  on  Sunday,      ..... 

when  service  excused,  by  stay  of  proceedings, 

(Sec    STAY    OF    PROCEEDINGS.) 

when  may  call  out  power  of  the  county, 

{Sec    POWER    OF   THE    COUNTY.) 

process  void  on  its  face,  should  not  be  served, 
when  regular  on  its  face,  though  void,  may  be, 
but  officer  not  bound  to,  ...  . 

82 


30 

86 

30 

36 

37,  38 

38 

10,  205 

108 

265 

330 

898 

556 

022 


70G 

010,  047 
648 
648 


93,  138 

20 

652, 077 

28,  39 

11 
28,  39,  40 
29 
29 
30 
31-84 
31 
31 
32 
33 
35 


53,  56,  282 

.      56, 283 

284 


642 


INDEX. 


PROCESS.  EXECUTION  OF,  (r,m/iHMr</.) 

.11x1  luay  ccAiio  witcii  lio  Ic.imii  ihnt  fact,  .... 

but  must  servo  process  not  voiii,  though  Irrt'pular, 

disUncUon  bclwocn  voiti  and  Irn-pulnr  i>r»>cfs«t,  50 

In  Civil  Casks  : 

powprii,  (lulii'fl  and  iiabililii-son,  .... 

what  not  to  l>o  ."mtviiI  mi  oK'cti«>n  d.iy, 

if  it  »lo<"»  not  rfijviin»  arrest,  &c.,  linni;»torial  if  void,    . 

otluTwiso,  should  not  be  executed  if  void  on  its  face, 

wljat  is  voi»l  procens,      ......  00 

may  e.\ecute  void  process,  if  not  so  on  its  face, 

but  tlie  oOicer  is  n«>t  bound  to,  . 

and  if  he  has  bcgnn  to  execute,  m.iy  stop  on  learning  the  fact, 

though  void  process  will  protect  oflicer,  will  uot  give  right  of  action 
against  another, 

bound  to  execute  process  merely  voidable, 

when  civil  pnx:ess  to  be  executed, 

where  may  execute  civil  jtrocess, 

how  served  when  party  is  in  custody,  . 
PROCL.VMATION, 

when  v.icancy  in  ofBcc  of  sheriff,  governor  to  issue,  for  election, 
coroner, 

governor  may  by,  declare  county  in  state  of  insurrection, 

sheriff  to  make  and  publish  of,  for  oyer  and  terminer, 
PROPERTY  EXEMPT  FROM  SALE  ON  EXECUTION, 

the  goods  of  an  amb.assador,  &c., 

and  of  a  bankrupt  ami  insolvent, 

gootls  in  custody  of  the  law,       .... 

fixtures,  when  exempt,  .  .  .  .  • 

what  ixeini)t  by  Revised  Statutes, 

by  exemption  law  of  1812,  .... 

by  other  statutes,  ..... 

by  the  common  law,       .  .  .  . 

exemption  is  a  personal  privilege, 

and  it  may  be  waived,  except  when  judgment  is  for  liquor, 

when  no  property  exempt  on  process  for  a  flue, 

none  exempt  on  military  warrant, 

Q 
QUALIFICATIONS, 

of  sheriffs,  ...... 

IKTNons  appointed  by  governor  to  possess  same  as  sheriffs, 
uiuler  sherifl's  an<l  dejfuties  to  possess  same  as  sheriffs, 
but  otherwise  of  jailers,  .... 

of  cor<»ners,         ...... 

of  coimlables,     ...... 

of  jurors, 

{See  JL'uon.t.) 
of  KurvUes  to  sheriff 'h  bond, 
of  bail,  on  arrest  under  order,  . 
under  claim  ami  delivery  of  iHirson.nl  property, 
of  surety,  to  bond  of  indemnity  on  att.ichment, 
of  bail  for  the  limits,      .... 

of  jHirBou  to  »cr>*c  babea.i  coriius  ;  to  be  an  elector. 


284 

286 

,  282,  28» 

280 

34, 802 

281 

2^2 
,  282,  283 
284 
284 
284 

280 
2ho 
287 
288 
C8,  304 

12 
890 

37 
153 

202, 458 
459 
400 

440, 401 
402 
403 
404 
405 
400 
400 
050, 1076 
087 


12 

2,  14 

14,20 

882 

U79 


3 
333 
362, 300 
383 
670 
000 


INDEX. 


643 


R 
RACING, 

proliibitod  witliin  two  miles   of  pl.ico  of  a.s.sembljigc   for  rcli{;loun 
worship,       .....■•• 
ofTioers  to  ;ittcii<l  ;ui(l  im-vciit  raciiij,',  wlicn,     .... 
warrant-s  may  l»c  i.ssuod  fur  npiirclieusioii,  &c., 
RECKIPTOR  AN!)  IIKC'EIPT, 

(iStC    nONDfl    TAKKN    IN    PnOCEEDINGS.) 

wlu'ii  may  taiic  receipt  for  property  levied  on, 
coiulitioii  of  receipt,        .  .  .  .  • 

ought  not  to  provide  for  any  thinp  beyond  slierifls'  liability, 
constable  may  take  on  attaehini,',  or  levying  on  pro|»erty, 
but  when  on  levy,  must  demand  it  wiiliin  life  of  execution, 
rights  of  oflicer  as  to  property, 

right-s  of  party  giving  receipt,   .... 
REDEMPTION, 

duty  of  sheriff  on,  .  .  .  .  • 

when  debtor  and  grantees,  &c.,  may  redeem,  . 

when  may  redeem  a  part,  .... 

when  an  undivided  share,  .... 

when  and  how  to  be  made  by  debtor,  &c.,        .  • 

to  whom  money  paitl,  &c.,         .... 

if  debtor,  &c.,  fails  to  redeem,  creditors  may,  . 

when  may  redeem  a  part,  .... 

when  other  creditors  may  redeem  from  first,    . 

may  redeem  more  than  once,     .... 

original  purchaser  may  redeem,  when, 

when  the  plaintiff  in  the  execution, 

but  not  under  judgment  on  which  premises  were  sold, 

effect  of  sale  on  right  to  redeem, 

when  a  judgment  ceases  to  be  a  lien,     . 

■when  a  senior  creditor  may  redeem, 

what  judgment  may  redeem  under, 

what  must  be  paid  on  redeeming, 

who  entitled  to  deed  when  judgments  arc  of  same  date, 

what  second  creditor  must  pay, 

to  whom  to  be  paid,       ..... 

when  paid  to  officer,      ..... 

what  money  may  be  received,    .... 

sheriff  not  bound  to  make  computation, 

but  if  he  does  and  misleads  party,  who  pays  too  little,  redemption 

will  be  good,  ..... 

otherwise,  if  party  commits  the  error  himself, 
and  payment   of  the  deficiency  after  the  expiration  of  the  fifteen 

months,  will  be  too  late,     .... 
opposite  party  not  bound  to  furnish  information, 
all  that  is  required  is,  that  he  do  not  mislead, 
proof  of  right  to  redeem,  to  be  left  with  officer, 
payment.s  and  evidence  of  right  to  be  left  with  same  j)erson, 
right  to  redeem  becomes  fixed  at  expiration  of  fifteen  months, 
and  if  full  payment  not  m.ide  and  papers  furnished,  right  gone, 
officer  no  right  to  waive  any  condition, 
but  a  purchaser  or  creditor  may,  .... 


.  92 
Il'J 


415,  128,  4%,  703 

415,  4:}5,7C3 

.     703, 809 

KXJ'J,  1037 

1037 

,     435,  HO'J 

430,  435,  809, 1037 


409 
500 
501 
502 
503 
504 
505 
506 
507* 

.  ill 
508 

508,511 
510 
510 

510,511 
511 


507, 


5i; 


511 
512 
513 
514 
515 
510 
510 
517 

517 
517 

,521 
517 
517 
618 
620 
621 
521 
521 
521 


644 


INDEX. 


REDEMPTION,  {r,>ntinued.) 

bm  nilfmiiljoii  invAliJ  m  to  olhcnt,      ..... 
right  to  mlcoin  not  to  hv  di-roAtotl  by  p.iying  lien, 
but  if  criHlitor  ftccopLH,  hi.i  lirii  Is  goiip,  ... 

any  cnnlitor  u>.\v  riili-tm  wiihin  iwrntyfour  hours  of  l/ust, 
n'tloniplioii.H  mmlo  on  LlhI  tl.iy,  to  In-  math'  .it  .sh»'rifl"s  ollic*',  .md  l<> 

whom,  ........ 

whon  rtnlomption  ni.ide  j)ri<>r  to  I.xst  day,  officer  to  make  cortiflcato 

nntl  nii«,        ....... 

ant]  whin  any  rt-doniption  i.s  made,  to  givi'  party  ci.'nifkato,  . 

a  pnri-h.iser  at  sheriir's  sale  may  make  valid  agreemonl  to  extend 

time  of  redemption,  &c.,     ..... 

and  this.'  eul.s  off  junior  creditors,  .... 

com|)ulation  of  time  of  redemption,       .... 

when  deed  to  be  executed,  and  to  whom, 

w  lien  sherilf  compelled  to  convey,         .... 

how  executed,  .iiid  who  to  execute  the  deed,    . 

when  court  will  .ippoint  a  i)erson  to,     . 

when  deed  to  bear  date,  ..... 

what  will  not  avoid  the  deed,     ..... 

what  the  deed  conveys,  ..... 

how  actual  possession  acquired,  .... 

REMOVAL  FROM  OFFICE, 

governor  may  remove  sheriffs,  when,     .... 

may  remove  coroners,    ...... 

may  remove  person  ajipointed  in  the  place  of  .sheriff,  without  cause, 
constables  may  be  removed  by  justices,  when, 
REPORTS, 

ketper  of  jails  to  present  to  oyer  and  terminer  and  sessions,  c.Ucndar 

of  j)risoners,  .  .  .... 

also,  to  report  to  sessions  disorderly  persons,  &c., 
to  report  convictions  in  criminal  courts  to  secretary  of  state, 
to  DLike  report  of  sales  under  decree  of  foreclosure, 

partition, 
RESIGNATION, 

sheriffs  may  resign  to  the  governor,      .... 

coroners  .... 

undei  bherid,  deputies,  &c.,  to  the  sheriff, 

their  resignation  need  not  be  under  seal, 

when  tendered,  sheriff  must  accept,     .... 

after  resignation,  they  can  do  no  act  to  bind  the  sheriff,  or  oUicrs, 
and  their  sureties  cease  to  be  liable,     .... 

resignation  of  shenff  vacates  offices  of  all  under  officers,  but  unde 

Bheriff,  ....... 

conhLibles  resign  to  three  justices  of  the  tow  II, 
RETURN  OF  PROCESS, 

what  is  a  return,  ...... 

sheriff  n>ay  niakf,  though  .service  rendered  by  deputy, 

but  in  general,  party  serving  to  make  return, 

unless  deputy  drad,  or  h;iM  gone  out  of  office,  . 

when  sheriff  or  deputy  may  make,  after  expiration  of  office, 

when  proccsa  is  "  returnable  process,"  certifluite  sufficient. 


6111 
522 
&22 
&23 

021 

525 
520 

527 
527 
528 
52'J 
530 
5:51 
531 
532 
532 
633 
C70,  633 

10 
885 

12 
9;»2 


155 

166 

167, 158 

541 

543 

9 
885 
15 
16 
16 
16,  17 
15 

15 
990 

28,39 
39 
39 
39 
39 
89 


645 


EETUIIN  OF  PROCESS,  {continued.) 

but  must  be  on  oatli,  in  raso  of  citation  to  take  proof  of  .1  will, 
to  writ  on  liabciw  corpus  wlaii  party  i.s  Hick, 
when  party  iH  concealed, 


ik  r<jail 


pior, 


48 


and  to  precept  for  suinnioninj,'  jury  in  pi. 

case,  .  .  .  • 

to  warrant  of  manner  of  destruction  ofl 
liow  return  .sif^neil,  ..... 

to  be  endorsed  on  warrant,         .  .  .  • 

but  if  Ion;,',  may  be  on  schedule,  (fcc,    . 
what  ri'turn  shall  contain,  .  .  .  • 

wlien  .and  whore  process  to  be  returned, 
penalty  for  neglect,        ..... 
proceedings  to  compel,  .  .  .  .  • 

criminal  process,  where  returned, 
if  magistrate  absent,  return  must  sliow  that  fact, 
what  return  to  bfl  made  to  precept  of  district  attorney, 
process  in  action  for  a  penalty,  where,  . 
civil  process,  when  returned,     .... 
return  to  subpa'na,        .  .  .  .  • 

when  to  be  returned,      ..... 
order  of  arrest  to  be  returned  when,  and  to  wliom, 
when  aflidavits  to  bo  filed  with  the  clerk  of  the  court, 
return  to  be  made  of  scrs'ice  of  summons, 
how  made  wlierc  party  conceals  himself, 
return  of  proceedings  under  claim  to  property,  when  to  be  filed, 
inventory  and  appraisal  under  attachment,  .  372,  3 

return  to  warrant  on  demand  against  ships, 
when  and  where  execution  returnable, 

return  of  nulla  bona,       ...••• 
returns  in  particular  cases,         .  .  .  •  ■ 

when  return  of  nulla  bona  may  be  made, 
return  to  writ  of  habeas  corpus,  .... 

order  to  be  served  on  a  defaulting  juror,  when  and  where  returned, 
precept  of  district  attorney  for  collection  of  fines, 
precept  of  commissioner  of  jurors  in  New  York, 
return  of  attachments  for  contempts,    .... 
writ  of  in(iuiry,  ...•••• 
ad  ijuad  damnum,  ..... 

for  returns  in  other  .special  cases, 

{Sec    UNDER     THE    PARTICULAR    TITLES.) 

a  return  of  regular  service,  conclusive  in  the  action,  . 

when  return  prima  facie  evidence,  .... 

when  conclusive  upon  the  sheriff  and  others,    . 

when  the  return  no  evidence,    ..... 

sheriff,  when  liable  for  false  return,      .... 

defence  in  such  actions,  ..... 


39 
39 
39 

."/J 

1110 

?,'.) 

3'.i 

:3'j 

39 

39 

40 

40 

41 

72 

VA 

C'jO 

42 

182, 289 

39 

337 

345 

3.51,1104 

289, 351 

363 

9,  380,  382 

39G 

403,  422 
423 
423 
424 
G09 
078 
082 
683 
791 
037 
638 


44,  331,  037 

45 

46 

47 

842,  843 

843 


SALES  UNDER  EXECUTIONS, 

sales  to  be  at  pubiic  auction, 
auctioneer  may  bo  employed  to  call  off,  . 
but  property  can  only  be  struck  off  by  ofBccr, 
by  whom  auctioneer  to  be  paid,  . 


467 
467 
467 

467 


G4G 


INDEX. 


SALES  UNDKR  EXECUTIONS,  (rontintud.) 

mIo  mu.«i  \h'  lK't>vi-eii  hours  uf  nim-  In  tho  morning  and  Betting  siin, 

if  all  i-annut  \w  sold  iH'foro  sundown,  niusl  jni>tti«uie  to  next  ilny, 

how  postponomont  made,  ...... 

j)roporty  liow  sold.  ...... 

wlion  property  is  mortgaged,        ..... 

how  much  may  Ik»  sold,    ...... 

if  ho  Rollft  more,  action  will  lie,     ..... 

no  m]v  can  1h'  made  unless  notice  given, 

penalty  for  taking  down  notice,    ..... 

hut  will  not  aflect  Itona  Jido  purchaser,  .... 

if  jturchaser  refuses  to  pay,  sheriff  may  maintain  action  for  punha.sc 
money,  ....... 

ofliccr  ha.s  reason.ihie  discretion  about  postponing, 

not  to  sell  if  he  cannot  g<'t  reasonable  price,  ,.  • ' 

not  bound  to  obey  attorney  in  this  respect, 

officer  is  bound  to  collect  the  debt  but  not  to  sacrifice  the  property, 

may  return  that  he  has  goods  on  hand  for  want  of  bidders, 

and  may  wait  till  seived  with  writ  of  venditioni  exponas, 

may  receive  current  bank  bills  on  sale,  .... 

and  should  not  under  ordinary  notice,  require  specie,    . 
if  sherift'  sell  without  authority,  nothing  pas.scs, 

but  a  sale  on  a  junior  execution  will  be  valid,    . 

either  party  may  bid  on  sale  on  execution, 

and  one  defendant  may  bid  on  .sale  of  co-defendant's  property, 
a  corporator  may  purchase  corporate   property  for  his  benefit, 

when  jdaintifi"  purchases  and  there  is  no  controversy  as  to  right  to  tho 

money,  is  not  required  to  pay  unless  surjjlus, 
but  if  disjiute,  bherifTmay  refuse  his  bid,  or  to  deliver  property  unless 
he  will  i>ay,      ....... 

if  no  controversy,  sheriff  may  deliver  tho  property  to  the  plaintiff, 
and  if  judgment  is  reversed  will  not  be  liable  for  proceeds, 
sherilf  may  refu.se  bid  of  an  infant,        .... 

no  officer  to  purchase  property  on  sale,  .... 

but  jailers  and  turnkeys  not  prohibited,  .... 

and  a  deputy  interested  in  an  execution  may  bid  on  ^ale  by  anothc 
deputy  ....... 

a  bid  may  be  withdrawn  before  property  actually  struck  off,     . 
but  sheriff  has  no  right  to  allow  |)arty  to  withdraw  after  struck  off", 
when  sale  of  partnership  projierty  on  execution  against  one  defendant, 
a  sale  only  passes  defendants'  title,  .... 

when  may  sell  and  when  not,  goods  mortgaged, 
if  defendant  has  no  interest  in  goods  or  lands,  purcha.ser  acquires  none, 
when  gocwls  of  a  stranger  are   sold,  aetion  may  bo  ngniiist  the  deput 
or  sheriff,  or  j)urchaser,         ..... 

but  a  sale  of  real  estate  gives  no  right  of  action,  .  .  1 

when  sale  is  valid,  purchas<'r  ac(|uires  all  rights  of  d<fendant, 
hai  right  to  remain  on  premises  long  enotigh  to  remove  property  sold 
If  growing  crops,  m:iy  go  on  land  tt!i<l  take  care  of  then>, 
If  gfwKls  pledged  or  mortgaged,  purchaser  aci[uires  rights  of  owner, 
if  properly  Is  owned  by  defendant  and  others,  may  deliver  entire  pos 
session,  ....... 

if  judgment  or  execution  is  void  or  set  aside,  party  has  restitution, 
if  bcfonj  sale,  of  the  property;  if  afler,  the  money. 


■If.R,  47'J 
4C8 

4r.'.i,  m) 

4M> 
■UV.i 
4«0 
•170 
470 
470 

473 
473, 474 
474 
474 
474 
474 
474 
476 
475 
476 
434,  47G 
471 
471 
471 

431t,  471 

430,471 

471 

430, 471 

43'.t,  471 

2,  472 

2,  472 

472 
473 
473 
403 

47r. 

470,  KI8 

476 

47« 
47r..  h.M) 

477 
437. 477 
437,  477 

477 

477 
477 
477 


INDKX. 


647 


HALES  UNDER  EXECUTIONS,  (rant innal .) 

lijjlits  of  paitiuH  wliere  judgment  is  rucovorcd   in  case  of  absent  de 
foDduiit,  ....... 

(.SVc   HALE    or    PKnSONAf,    PIlOPKHTy.) 
(Srr    SAI.K    or    KEAI,    i:STATE.) 

BALE  OF  rEUSONAL  IMiOrEIlTY, 

sliuriir  inuHt  sell  all  goods  and  cliattol.s,  excupt  gold  and  silver, 

though  ho  levy  on  hut  ono  execution,  may  sell  on  all  in  his  hands, 

but  not  if  ho  docs  not  advcrti.se  on  them, 

sale  may  be  before  or  after  return  day,    . 

oven  after  shcrifl'  has  gone  out  of  ollicc,  if  levy  made  before, 

notice  of  time  and  place  must  Hrst  be  given, 

notice  how  given,  .... 

time  of  giving  notice,  how  computed,     . 

what  notice  siiouM  state,  . 

when  sale  should  be  had,  , 

notice  how  signed, 

notice  of  postponement,  how  given, 

personal  property  must  bo  present  at  sale, 

if  not  all  present,  .sale  good  for  that  present, 

to  be  pointed  out  to  bidders  and  sold  in  parcels, 

but  stranger  no  right  to  object  if  it  is  not  so  sold, 

how  pledged  or  mortgaged  property  sold, 

oflicer  not  required  to  sell  by  retail, 

but  in  such  parcels  as  will  best  suit  purchasers, 

and  if  will  sell  for  most  that  way,  may  bo  sold  altogether, 

but  whatever  is  sold  must  bo  sold  separately,     . 

sale  of  a  part  of  the  sheep  in  a  flock ;  or  i)art  of  h.iy  in  a  stack  void 

when  goods  are  sold,  exact  account  should  be  kept, 

when  bill  of  sale  should  be  made,  .... 

SALE  OF  REAL  ESTATE, 

when  and  what  real  estate  may  be  sold  on  execution,  . 

what  exempt,  ....... 

proceedings  where  homestead  is  appraised, 

no  levy  on  land  necessary ;  giving  notice  sufticient, 

advertising  real  estate,      ...... 

if  sold  without  notice,  &c.,  liable  to  penalty,    . 

though  sale  will  be  valid,  ...... 

lands  how  described,  ...... 

how  sold ;  in  parcels,         ....... 

if  officer  sells  more  than  sufficient,  sale  will  be  set  aside, 

the  interests  of  several  defendants  held  in  common  to  be  sold  together 

on  sale,  officer  to  make  and  file  certificate  thereof, 

neglect  to  file  will  not  render  sale  voixl,  .... 

certificate  may  be  amended,  ..... 

though  proceedings  are  irregular,  title  will  pass, 

title  not  aflected  by  shcrilVs  return,        .... 

surplus  moneys  how  disposed  of,  ...  . 

if  premises  leasehold,  deed  to  be  given  if  not  five  years  unexpired 
term,    ........ 

if  otherwise,  defendant  has  right  of  possession  for  fifteen  months, 

but  this  right  may  be  aciiuircd  by  creditor's  bill,  &c.,    . 

how  defendant  may  enjoy  premises,        .... 

proceedings  when  defendant  commits  waste, 

when  deed  is  given  it  will  relate  back  to  time  of  sale,  . 


477 


478 
431 
434 
478 
478 

470,  47'J 
479 
479 
479 

4C8, 479 
479 

408, 479 
4H0 
■ISO 
4  HI) 
480 
480 
480 
480 
480 
480 
480 
481 
481 

482, 483 
484 
484 
i8o 
4^1} 
4'J(J 
470 
487 
488 
488 
488 
489 
489 
48'J 
4'Jl 
491 
492 

489, 493 
493 
493 
493 
494 
495 


648 


INDEX. 


■lonoii. 

SALE  OF  REAL  ESTATE,  (eonlinued.) 

wlint  piircliasiT  pota  on  jialo,        ......  41>f>-498 

SALE  OF  REAL  ESTATE  LNUER  DECREE, 

wlitii  sluTill";.  may  soil,       .......  H'M 

liow  land.s  advi<rli.i»'(l,        ......  636 

where  daily  jwipcr  is  publi.Hhi'tl.     ......  630 

wlial  tlio  notice  sliould  contain,    ......  637 

procwdings  on  sale,          ......  638 

how  sale  panlpont'd,           ......  639 

whon  to  rxocutf  drod,      .......  6-10 

to  make  report  of  sale,       .......  641 

in  partition  suits  how  notice  given,          .....  61U 

reports  of  sales  under  decrees  in  partition,         ....  6^i3 

SALT,  ARltEST  FOR  VIOLATION  OF  LAWS  HELATIVE  TO,  &c., 

pri>ce.ss  may  l)e  i.ssued  on  Sunday,            .....  061 

liow  long  party  detained,  .......  661 

responsibility  of  shcriir,    .......  051 

how  confined  and  what  will  1)0  an  escape,            ....  246,240 

SEARCH  WARRANTS, 

for  oflicial  boolcs  and  papers  withheld,  to  be  served  in  the  day  time,  8,  602 
who  to  issue,  for  stolen  or  embezzled  goods,  ....  79 
when  and  how  to  be  executed,  .  .  .  31,  80 
warrant  to  search  for  gaming  apparatus,  &c  ,  how  executed,  .  110,117 
how  and  when  to  issue  to  search  (or  child  concealed  among  the  sha- 
kers   030 

when  debtor  under  non-imprisonment  act  to  be  searched,                   .  045 

when  issued  for  public  administrators.  &c.,        ....  700,761 

for  goods  pawned,  ...  ....  1084,  1085 

for  liquors  under  prohibitory  law,     ......  1138 

SECRETARY  OF  STATE, 

name  of  sherifT  to  bo  entered  in  office  of,            ....  3 

coroner                                                      ....  881 

to  be  admitted  into  jails,  &.C.,      ......  222 

sheritr  to  report  convictions  to,     ......  167,168 

SHERIFFS, 

TiiEiK  E1.KCT10N,  Qualifications  ano  ENTERi.st;  ipon  tiif.ir  Dlties: 

their  election  and  term  of  office,  ......  1 

to  be  served  with  notice  of  election,  by  county  clerk,  ...  1 

when  to  enter  upon  their  duties,  .                        .  1 

how  long  to  discharge  duties  of  office,     .....  1 

their  qualilicalions,            .......  2 

can  ].'>\d  no  other  office,    ......;  2 

nur  act  as  solicitor,  (Stc,     .......  2 

nor  be  bftil, 2, 333 

nor  execute  process  in  suits,  &c.,  in  which  he  is  a  party,  2 

coroner  to  execute  in  such  case,  ......  2,960 

or  tht- court  niny  appoint  elisors,  ....  2, 'JOl,  982 

but  lie  m.ay  s<rve  process  in  a  cause  in  which  his  deputy  is  a  i>arty,     .  2 

and  may  attach  a  witness  in  a  suit  in  which  he  is  a  Jiarty,  189 

cannot  purchase  property  sold  by  him  on  execution,  -,  174 

he  is  ineligible  for  next  three  years,         .             ,            .  2 

but  this  docs  not  apply  to  one  appointed  by  governor,  2 

nami!  to  Imj  entered  with  secretary  of  state,        ...  3 

and  before  he  enters  c)n  duti<-s  of  his  office  must  tako  oath,  3 

when  and  whore  to  bo  taken  and  flled,     .....  8 


INDliX. 


649 


SUEIUFFS,  (continued.) 

must  also  eiocuto  a  bond  to  tho  people, 

(&W'    DOND«,    OKKiaiAL,) 

penalty  for  executing  oflico  without  taking  oath  or  giving  bond, 
vacates  the  oflico,  ....••• 

when  sherlfl  has  qualided,  county  clerk  to  give  certificate, 
new  sliorifl  to  servo  same  on  tho  old,        .... 

whereupon  his  powers  c-\cei)t  in  certain  cases,  cease,     . 
and  within  tun  days  must  deliver  over  jails,  &.C.,  to  successor,  . 
old  sheriir  to  execute  assignment,  &c.,     .  .  .  • 

what  to  contain,      ....... 

to  be  delivered  to  new  sheritl",       ..... 

who  shall  aclinowledj^e  receipt  of  property  on  duplicate, 
if  ofllce  vacant,  the  person  who  di.schargc3  tho  duties  thereof  to  deliver 
over,  &c.,        .....•• 

rights  and  powers  of  new  sheriff  as  to  prisoners  on  tho  limits,  . 

(SfC    IMPRISONMENT    IN    CIVII.,    CASES.) 

if  old  sheriff  refuse  to  deliver  possession,  guilty  of  misdemeanor, 
how  new  sheriff  may  obtain  possession, 

{sec  delivery  of  official  books  and  papers.) 
Resionation  and  Removal  from  Office  : 

may  resign  to  the  governor,  ..... 

when  the  office  will  become  vacant,        .... 
when  the  governor  may  declare  it  vacant, 
when  on  charges,    ...••■' 

(See   SHERIFFS,    CHARGES    AGAINST,) 

what  other  acts  will  forfeit  office,  .  .  .  • 

who  to  discharge  duties  during  a  vacancy. 
Powers  and  Duties  of  Sheriffs, 

to  appoint  under-sheriffs,  &c.,     ..... 
(Ste  under-sheriffs.) 

(See   DEPUTY  SHERIFFS.) 
(Sec   DEPUTY,  SPECIAL,) 

(See  JAILERS.) 
sheriff  must  keep  an  oflico  and  file  notice  thereof, 
where  to  be  kept,  ...... 

during  what  time  to  bo  kept  open, 

notices  to  be  served  therein,         .... 

if  no  notice  filed  how  papers  may  be  served, 

they  have  the  custody  of  the  jails  and  may  insure  them, 

duties  as  conservators  of  the  peace, 

(See   CONSERVATORS    OP   THE    PEACE.) 

to  execute  all  criminal  process,     .... 

including  that  of  oyer  and  terminer  of  other  counties,  . 
to  serve  subprenas  of  district  attorneys  of  other  counties, 
are  also  keepers  of  the  jails,        .... 

and  required  to  execute  all  process  of  courts  martial,  . 
in  civil  matters  are  ofliccrs  of  every  court  of  record,     . 
duties  therein,        ...  ... 

may  execute  certain  writs,  but  can  hold  no  other  court, 
may  administer  oaths  in  certain  cases,     . 
for  duties  of  sheriff, 

(SvC  THE   DIFFERENT   APPROPRIATE   TITLES.) 


3,4 

5 
5,;t 
0 
0 
I) 
G 
0 
C 
C 

c 
c 

6,7 

8 
8 


9 

9 

10 

10 

11,563 
12 

13 


23 
2P. 
23 
23 
23 
24 
26 


25 

25,178 

26 

26 

20, 14S 

148-158 

26 


83 


650 


INDEX. 


SilKIUFFS,  ACTIONS  AOAINST. 
WiiiN  CuiMiNAi.i.T  LiADi.i:  : 

misilomoaoor  to  cxocuto  ollico  wjthoat  Uking  oath,  iVc, 

allow  another  to  oxeciito  it  for  reward,  &c., 

bnt  not  to  allow  a  deputy  to  act  for  n  portion  of  the  fees  of  the  ofllcc 

misdemauior  to  rrfuiio  to  deliver  po«t.He»slun  to  Rnccensor, 

yiolnte  ftlatutej*  ronceriiitiK  nru'st,  Sic.,  on  civil  process, 

allow  liipior,  Ac,  to  be  sold  in  jail, 

act  under  jiretenco   of  authority, 

rufusc    to   inform  against  violatcrs  of  laws   against 

gaming,  .... 

commit  fraud  in  drawing  jurors,  . 
insert  defendants  witnesses  in  subpoena  for  the  people 
allow  insolvent  debtor  to  go  at  large, 
to  roconimit  one  di-rliatged  on  habeas  corpus, 
transfer  one  entitled  to  halK-as  corpus  to  evade,  dtc., 
refuse  to  pay  over  money  collected  on  military  warrant 
commit  certain  frauds  concerning  wrecks, 
violate  i)rovij*ions   of  act  of   1856  concerning  stole 

property,  ..... 

to  contino  any  lunatic  except  as  provided, 
neglect  or  refuse  to  perloim  any  duly  under  prohibi 
tory  law,      .  .  .  ,  .  , 

wilfully  neglect  any  duty  imposed, 

penalty  for  wilful  and  corrupt  conduct,  . 

deputy  criminally  liable  in  same  cases  as  sheriffs, 

but  sheriff  not  criminally  liable  for  acts  of  deputy, 

though  civilly  liable  for  their  acts, 

penalty  for  refusing  to  deliver  copy  process,     . 

when  liable  for  not  making  return  to  process,    . 

penalty  for  refusing  to  execute  process  of  judicial  ofGces, 

oppression  in  execution  of  process  indictable,  . 

extortion  to  demand  fees  before  services  are  rendered, 

but  to  render  sheriff  liable,  he  must  have  received  them  himself, 

when  sheriff  fined  for  act,  court  to  take  into  consideration  in  inflict 
ing  punishment  on  indictment,  .  .  . 

When  Civilly  Liable  to  Pahty  Algjiieved: 

are  for  acts  or  defaults  of  himself  or  deputy,     ... 

liut  if  a  fine  ha."*  been  imi)osed  and  accepted,  bar  to  an  action, 

refuse  to  discharge  one  on  habeas  corpus, 

li.ible  for  refusing  copy  of  process,  .... 

not  delivering  over  copy  of  process  to  prisoner,  when, 
refusing  to  .serve  or  return  process,    .  .       28,420,831, 

what  will  excuse  in  such  ca.so,    .  .  .35,  420,  438,  832-834, 

when  liable  to  plaintiff  for  refusal  to  levy,  &c., 

what  will  excusi.'  in  such  case,     .  .  .  • 

when  for  defective  levy,  ..... 

pr»K>f  necessarj*  In  such  case,       .... 

what  may  be  shown  In  defence, 

when  sheriff  liable  .vt  bail,  &o.,  ... 

when  for  taking  insullit  i<iil  bail, 

defence  In  such  action,    ..... 

when,  for  gcxKis  levied  on,  .... 

what  will  excuse,  and  what  not,  loss,    . 


6 

11 

11,21 

8 

11,. 003 

11.211 

oO 

118 
101 
197 
680 
026 
027 

oyo 

740-712 

1157 
1004 

1155 

829 

11 

11 

S20 
29.  001 
39,  40 
053 
829 
829 
829 

829 

19,830 

830 

020 

29, 001 

219 

832,  840 

843,844 

832 

832 

420 

833 

834 

835 

801 

s;{5 

8;!G 

439, 836 


INDEX. 


G51 


4.']  1, 837 

8.38 

839 

210,  UO-J,  600,  579-682  841,  852,  863 

841 

580-588,  5'Jl,  50'J 

245,  240,  580-582, 850-85a 

824 

-      40,  842 

40,  842,  847 

420,843,844,847 

801 

33,  53,  415,  420,  409,  470,  400,  023,  020,  845 
...  .    409,  470, 846 

420,  470, 850 
861 
.  847,848 
10,40,  470,850" 
851 
852 
854 
856 
1154 
802 
803 


SHERIFFS,  .VCTIONS  AGAINST,  (ronlinunl.) 

when  liable  to  plairitilirur  inom.'y  collocli.'J  on  ixt-culion, 

I)roof  in  such  ca.sc',  ..... 

what  will  bo  a  (lereiico,    ..... 

when  liable  for  escaiMS,  .  24 

proof  in  .such  cjuse, 

defonco  to  sucii  action,    . 

dani;»g<'s  in  clsu  of, 

when  juilf^inont  against,  will  be  sU'iyctl, 

when  liable  for  false  return, 

proof  necessary  to  slmw, 

defence,     ..... 

when,  for  taking  insufficient  bail, 

when  liable  to  the  defendant, 

when  liable  to  third  parties,       .  ... 

when  goods  of  a  stranger  arc  seized,  who  m.iy  be  sued, 

daiujiges,  ....... 

in  defence,  wlicu  necessary  to  show  a  judgTiient, 

when  liable  and  when  not,  for  acts  of  deputy,  . 

proof  in  such  case,  ....... 

when  action  to  be  brought,         ...... 

when  sueil,  has  right  to  retain  his  own  attorney,  though  indemnified, 

not  entitled  to  double  costs, .       . 

when  cannot  maintain  action  against  officer  for  destruction  of  liquors, 

how  and  when  action  to  be  maintained  on  sheriff's  bond, 

condition,  &c.,    ........ 

liability  of  sureties,  .....  804,807,871,873 

when  injured  party  may  apply  to  supreme  court  for  leave  to  prose- 
cute, .........  805 

order  of  proceedings  in  action,  ......  806 

may  be  as  many  actions  as  breaches  of  condition,        .  .  .     807-870 

execution  in  such  ca.se,  how  endorsed,  .....  874 

no  execution  against  the  body  until,  &c.,  ....  878 

judgment  in  such  case,  private  action,  .....  879 

when  judgment  against  relator,  .....  880 

SnERIFFS,  ACTIONS  BY, 

when  may  maintain,  for  attached  property,  rights,  &c.,  375,  380,  382,  390 

{Sec    ATT.\CHME\T3    ACiAI.VST    FOREIGN    CORPORATIONS,    *C.) 

when  on  bond  taken  on  ne  exeat,         .....  399 

805 

805, 1007 

805, 1096 

805 

805 

805 

8,806 

806 

807 
SOS 
808 
808 


sheriHs,  coroners  and  constables  may  mainUiin  action  for  foes,  &c., 

when  entitled  to  a  rejisonable  compensation, 

but  not  if  fee  is  fixed,    ...... 

when  may  maintain  action  against  party  or  attorney, 

but  if  he  gives  attorney  whole  credit,  cannot  afterwards  look  to 

party, 

return  to  process,  prima  facie  evidence  of  service, 

proceedings  when  one  usurps  the  office, 

when  the  fees  of  the  office  may  be  recovered  in  such  case, 

when  goods  in  custotly  of  the  law,  officer  may  maintain  action  for 

interference  therewith,        ..... 
but  not  if  levy  is  irregular,  &c.,  .... 

for  the  owner  may  retake  them  peacefully  if  he  can,  . 
but  may  not  commit  assault  on  the  officer, 


652 


INDEX. 


SUERIFFS,  ACTIONS  BY,  (r^ntinurd.) 

rijjhl  of  Action  n>maiti.i,  thuu(;ii  a  rocclpl  waa  tAkcn  for  tbo  goods, 

when  may  ni.iiiil.iin  action  nff.iinsl  thi«  rt'cciplor, 

wlii'nrvcoiptorni.iy  and  ni.iy  not  (li-ftMid, 

if  the  officer  Ix*  a  oonstlablo,  ho  nmst  di'ni.ind  the  jiroiK-rty  in  tlio  lift 
of  the  execution,      ...... 

aflor  i>ro|KTty  nMcaaod  H-oin  levy,  no  action  can  be  m.iinUiincd  again.st 
a  ((tranpiT,   ...... 

but  otluTwiso,  if  .Huch  .str.mptT  li.ifl  fraudulently  induced  such  relcaae 

endurM-nient  of  levy,  evidence,  &c.,  when, 

when  judgment  must  be  shown,  .... 

me.isurc  of  d.iniages  for  taking  goo<ls,  &c., 

when  cannot  maint.iin  action  for  money  paid    . 

.if\or  judgment  for  levy,  Ac,  what  he  m.iy  recover  of  i)l.iinti(r, 

when  ni.iy  recover  of  one  \vl»o  escapes, 

what  defence  to  .iclion  on  prisoner's  bond, 

when  judtnnent  conclusive  against  prisoner  and  bail,  . 

when  judgment  to  be  rendered  for  sherifl', 

when  judgment  vacated,  ..... 

measure  of  damages  on  bond  for  the  limits, 

wlien  and  by  whom  bond  may  be  assigned, 

when  judgment  on  bond  for  party,        .... 

when  .issignmcnt  of  bond,  bar  to  action, 

when  a  defence  in  action,  by  assignee, 

when  stay  of  proceedings  on  judgment  against  .sheriflT, 

when  sherifl'm.iy  maintain  action  on  bond  of  indemnity, 

when  for  a  rescue,  ...... 

what  must  be  proved,     ...... 

when  sherifl  arrested,  when  passing  through  other  county,  &c., 

when  right  of  .iction  against  deputy,     .... 

when  he  may  recover  against  deputy  before  payment,  and  wlicn  not, 
.SHERIFFS,  CH.\RGES  AGAINST, 

the  governor  may  remove  a  sheritfon  charges, 

but  must  serve  liim  with  copy,  and  allow  opportunity  to  be  heard, 

if  sherilldoes  not  ;idmit  their  truth,  to  deny  in  writing, 

and  serve  same  on  the  governor, 

the  governor  may  then  direct  the  district  attorney  to  conduct 
nation  before  county  judge, 

to  give  accused  eight  day's  notice  of  time  and  place,  . 

district  attorney,  or  justice  of  the  peace,  may  issue  subpoenas 

I)Ower  of  county  judge  in  enforcing, 

dutiesof  county  judge,  ..... 

tesiimony  to  be  delivered  district  attorney,  ;ind  sent  to  governor, 
SnERIFFH  CLERK, 

not  to  act  .is  counsellor,  &r.,     . 
8UEUIFF  8  DEED, 

on  s.ile  of  li-asehold  lands,  &c.,  sheriff  to  execute  deed, 

when  to  execute-  <lr»'d  to  purcha.sor,      .... 

m.iy  be  executed  by  the  hherilTor  deputy,  who  sold,  . 

when  by  dejiuty,  to  be  in  name  of  sherilT, 

when  no  Hhcriff  nor  deputy,  another  fwrson  m.iy  be  apiwinlcd  to 
execute,       ...... 

no  security  uucetuiar}-,  when  nothing  to  be  done  but  execute, 


GO 


809 
HOy 
809 

809 

810 
810 
811 
811 
811i 
813 
814 
,816 
816 
817 
818 
818 
819 
820 
821 
822 
823 
824 
826 
808,  827 
827 
303 
19,828 
828 

10 
10 
10 
10 

10 
10 
10 
10 
10 
10 


489,  493 

529 

17,r,;n 

631 

681 
631 


INDEX. 


053 


SUEIUFF'S  DEED,  {continued.) 

wlu'ii  to  lioar  date,  ..... 

but  ruliitcs  back  lo  time  of  sale,  &c.,     . 
what  will  not  ad'oct  deed,  .  .  ■  ■ 

bheriir's  deed  oidy  conveys  legal  title, 
sheritr  to  sell  and  convey  under  decrees, 
when  to  execute  deed  on  sale  of  mortgaged  premises, 
when  on  s;ili'  uixltT  decree  in  partition, 
SHERIFFS  OFFICE, 

sheritr  to  keep  an  oflico,  .... 

where  to  keep  it,  .  .  .  •  • 

to  file  notice  thereof  with  county  clerk, 
during  what  times  to  be  kept  open, 
service  of  notice  may  be  made  therein, 
if  any  person  present,  must  be  served  on  him, 
if  no  notice  Oled  of  such  oflice,  service  may  be  made  on  county  clerk 
or  deputy  clerk,      .  .  .  .  • 

redemptions  made  on  last  day,  to  be  made  at  shcrifl"3  office, 
duty  of  oflicer  making  sale  to  attend,  . 
in  his  absence,  to  whom  redemption  may  be  made,     . 
SHIPS,  WARRANTS  OxN  DEMAND  AGAINST, 
warrant,  when  granted,  and  contents,    . 
how  executed,      ...... 

on  giving  bond,  when  ship  may  be  discharged,  . 
sale  of  vessel,  and  distribution  of  proceeds, 
sheritr  may  be  compelled  to  return  inventory,  &c., 
SPECIAL  SESSION, 

{See  cocRTs  of  special  sessions.) 
SPIRITUOUS  LIQUORS, 

where  prohibited  to  be  sold,        .... 

not  to  be  sold  or  brought  into  any  jail,  &c., 

may  in  certain  cases,  with  consent  of  physician, 

violation  of  statute  against  bringing  into  jail,  a  misdemeanor, 

and  the  sherifl'  or  jailer  forfeits  his  office, 

how  prisoners  confined  for  violation  of  excise  law, 

if  any  part  of  judgment  is  for  intoxicating  liquors,  consent  to 
exempt  property,  void,        .... 

in  no  case  can  sheriff  receive  pay,  &c.,  for  liquors  sold,  &c.,  prisoner, 

provisions  of  the  prohibitory  law, 

where  liquor  shall  not  be  kept,  .... 

when  and  where  and  how  li(iuor  may  be  sold, 

penalty  for  violation  of  statute, 

what  officers  to  have  cognizance, 

of  the  search  warrant,     .  .  .  •  • 

proceedings  when  liquors,  &c.,  seized,  . 

how  lifjuor  disposed  of,   . 

when  and  how  witness  may  be  summone;!  to  testify,     . 

duties  of  officers,  &c.,     ..... 

when  to  arrest  without  warrant, 

how  liquor  destroyed,     ..... 

process,  criminal  process,  and  how  to  bo  executed, 

form  of  warrant,  and  its  contents, 

when  and  how  a  jurj-  to  be  summoned, 


lerj'  on 


532 
532 
G32 

o;33 

531 
510 
543 

23 
23 
23 
23 
23 
23 

23 
624 
524 
524 

391 
392 
393 
394, 395 
396 


92 
214 
214 
214 
11,214 
244 

466 
662 
-1156 
1133 
1135 
113G 
1137 
11. 33 
11 39 
1140 
1141 
1142 
1142 
1143 
1114 
1145 
1146 


113.: 


1134 


654 


INDEX. 


SPIRITUOUS    LIQUORS,  {amUnuci.) 

how  \vitiic5.<>vji  mid  Juroni  coiuiK'Ilcd  tOAtUMul,  . 

whoi)  coiuplAinniit  tu  pay  coetUi,  ... 

duty  or  district  atlonn-y,  ..... 

when  aiid  how  nil  pnKc.H,s  to  bo  oxocutod, 

wliou  ami  how  party  to  bo  coiuniitlcd  for  iion-payiuenl  of  flue, 

whi'ii  ap|H*al  brouglit,      ...... 

prucofdiiifT*,  &*".,  on  app«al,       ..... 

whin  parly  cannot  m.iinUiin  nclioa  for  destruction  of  liipior,  . 

|x»nalty  for  noglt-ct  of  duty,        ..... 

fi'is  under  act,     ....... 

STATE  LANDS, 

when  governor  may  order  shcrifT  to  remove  pcrsoiu)  from, 

powers  and  duties  of  sheriir  thereon,    .... 

when  aud  how  to  execute  warrant  of  county  judge  for  removal  of 
intruders,      ..... 

commissioners  of  the  laud  oflice  may  n.(iuire  the  sherilV  to  report  as 
to  tresp;ussers,  .... 

STAY  OF  PROCEEDLNGS, 

when  iiy unction,  order  of  stay,  &c.,  error  or  appeal  brought,  duty  of 
oflicer  to  obey,  .... 

when  appeal,  &c.,  will  stay, 

such  stay  does  not  annul  what  has  been  done, 

if  arrest  or  levy  made,  to  be  retiiined  until  decision, 

when  may  perfect  levy  after  stay, 

what,  stay  of  execution  in  civil  case, 

when  stay  in  criminal  case, 

when  judgment  ;igainst  a  sherillwili  be  stayed, 

sherifr  nor  defendant,  nut  liable  to  i)ay  interest  on  moneys  while 
stayed  in  sheriir 's  hands, 
STOLEN  PROPERTY, 

how  disposed  of,  . 

in  New  York  and  Brooklyn, 
SUBPOENA, 

{Sec   WIT.VESS,    COMPELLINQ    ATTENDANXE    OP,) 

SUMMARY  PROCEEDLNGS  TO  OBTALN  POSSESSION  OF  LAND, 

when  one  may  be  removed  from  preujises, 

what  ollicers  have  cogniz.uice,     . 

when  to  is.sue  summons, 

summons,  how  served,     .... 

who  may  a]ipoar  and  defend, 

when  jury  may  be  called, 

magi-ttrate  to  nominate,  and  how  sunniioiied,    . 

six  to  bo  drawn  and  sworn, 

to  bc'kopl  together  until  .igree, 

when  warrant  to  issue  to  put  landlord  in  ]>o.s8ession, 

duty  of  otliccr  thereunder, 
SUMMONING  JURORS, 

{StC   JUKOKI.) 

SUMMONS,  SERVICE  OF, 

by  whom  sened,  ... 
when  to  be  served,  .... 
oD  neglect  may  be  proceeded  against, 


1117 
1118 
114<J 
1160 
1161 
1152 
1163 
1151 
1156 
116G 


707 
708 


85 

421 

35, 687 

36 

35 

421 

130,  279 

824 

420 

81 
1157 


C70 
G70 
G7I 

r.72 

073 
07  3 
074 
076 
070 
077 
077 


317 
318 
348 


INPEX. 


655 


■BcnoH. 


32.  8 


SUMMONS,  SERVICE  OF,  iamlhiucd.) 

power  of  sliciiiron  iii.ikiii!?  Ntrvico  of,  .... 
may  ciitcr  dwelling  pi  acifully,  but  not  against  owner's  wishes, 
how  served  on  a  curpor.ilion,     . 

miner  under  fourteen, 
luM.'\tic, 
in  other  eases,     .... 
return  wliorc  tlie  party  evades  sen'ice, 
how  served  in  sucli  ca.sc  under  order,  . 
proof  of  service, 

if  service  m.ide  by  sberifl",  proof  may  be  by  certificate, 
if  by  other  person,  or  by  sherin'out  of  bis  county,  by  affidavit, 
or  the  written  admission  of  tlic  party, 

what  certilicate,  &c.,  must  state,  .... 

SUNDAY, 

what  time  is  included  in,  ..... 

arrests  in  criminal  cases  may  be  made  on, 

iu  case  of  breach  of  the  peace,  .... 

apprehended  breach  of  the  peace,        .... 

for  crimes  and  misdemeanors,  ..... 

mider  the  statutes  couecrning  the  m.inufacture  of  salt, 

when  a  religious  meeting  is  disturbed, 

on  an  att;ichment  for  a  criminal  contempt, 

after  escape,  whether  from  civil  or  criminal  process,  . 

and  bail  may  arrest  principal  on  Sunday, 

but  no  other  process  can  be  executed  on  Sunday, 

oflicer  executing  process  on  Sunday  in  other  case,  liable  to  party 

aggrieved,   .....•••  33 

if  process  returnable  on  Sunday,  must  be  executed  before,     .  33,  40,  285 

process  returnable  on  Sunday,  though  irregular,  will  not  excuse  exe 

cution,         ....••• 
a  return  of  process  on  Sunday  will  bo  void, 

warrant  for  arrest  of  father  of  a  bastard,  cannot  be  executed  on, 
nor  warrant  for  viol.-\tion  of  city  ordinance, 
nor  for  non-payment  of  a  penalty,  except  in   cases   provided   by 

law,  .... 

manslaughter  and  uot  murder  to  kill  officer  in  making  illegal  arrest 

on  that  day,  ...... 

attachment  against  a  defaulting  witness  cannot  be  served  on, 
nor  to  enforce  any  civil  remedy,  .... 

divine  service  to  be  performed  in  jail  each  Sunday,  if  room,  &c., 

prisoners  in  jail  to  be  kept  at  work  each  d.iy,  except, 

if  last  day  for  redemption  is  Sunday,  premises  must  bo  redeemed 

before,  ....... 

writ  of  inquiry  not  to  be  executed  on  that  day, 
but  if  jury  retire  on  Saturday  night,  may  bring  in  verdict  on, 
SURPLUS  MONEYS, 

plaintiff  not  bound  to  p.ay  bid,  unless  surplus, 
when  surplus  moneys  on  sale  on  execution, 
when  and  what  to  do  with  surplus  on  foreclosure, 
SURRENDER  IN  EXONERATION  OF  BAIL, 

{Sec   BAIL,    RIGHTS    OF,) 


349 
319 

360 
360 
3.00 

2«'j,:;.''>o 

2H'.t,  a.jQ 

2b'.»,  •■;.j1 

3.j1 
351 
3.:il 
CGI 

33 
32 
32 
32 
32 
32, C51 
32,92 
32 
;3,  132,  591 
1.32,  5'Jl 
33 


285 

33,40 

33, 1051 

33 

33 

33 
184 
786 
213 
229 

528 
633 
633 

439 
492 
540 


656 


INDEX. 


SURROGATES,  PROCESS  ISSUED  l\Y, 

wli.it  pri>co!i.M  may  be  issuoJ  by  hurropato, 

whon  by  !«urro^te  of  one  county  to  .tluTiir,  Sec,  of  another, 

whore  attachments  to  l>o  nmdo  n'ltirnablo, 

olVicors  to  whom  proccns  \a  delivered  to  servo  same,     . 

how  dl.sobedioncc  to  process  punished, 

citation  to  attend  pr»)bato  of  will,  liow  served  and  proof  the 

citations  how  jterved  in  other  cases, 

proof  of  fcrvice  of  same,  ..... 

when  surrogates  of  New  York  may  issue  subpoena,  &c., 

who  to  is>uo  in  case  of  his  absence, 

subpnna  how  served,         ..... 

party  how  proceeded  against  for  disobeying, 

when  may  issue  search  warrant  for  goods  of  intestate,  . 

proceedings  thereon,  ..... 

when  coujity  treasurer  may  in  other  counties,    . 

swearing  profane,  prisoners  committed  for,  how  conflnad, 


reof, 


746 

2Q,  710,  786 
717 
20,  748 
749 
760 
751-764 
766 
760 
767 
758 
768 
769 
700 
701 
226 


TAXATIONS  OF  FEES, 

{SrC    FF.ES. 

when  shcritr  shall  have  his  fees  taxed,    . 
when  required  to,  not  to  collect  until  taxed, 
taxation  of  fees  answer  to  action  for  extortion,  . 
TAXES,  COLLECTION  OF, 

(See   COUNTY   TREASURER.) 

collection  of  taxes  in  cities  and  villages,  . 
TIME. 

computation  of  time  for  return  of  execution, 

for  notice  of  sale  of  personal  property, 
for  redemption, 

of  commitment  on  justice's  execution, 
of  service  of  summons, 
attachment,  .... 


1111 

nil 
1095,  nil 


702 

422 
479 
628 
606 
1003 
1008 


UNITED  STATES, 

prisoners  committed  by  courts  of,  how  kept, 

compensation  therefor,      .  .  .  .  • 

UNDEU  SIIEIIIFFS, 

sherifTs  to  ajjpoint,  ..... 

can  appoint  but  one  at  a  time,       .... 

wlien  may  appoint  special  deputies,        .  , 

in  absence  of  hherilf  to  attend  drawing  of  jurors, 

and  upon  the  cxeaiition  of  a  criminal,      .  .  .  .  • 

during  a  vacancy  in  the  olTlco  to  execute  the  duties,       .  1'. 

in  Bucli  case  ho  comph-tes  the  cxecutionof  process  commenced  by  the 
old  HhcrilT,  .  •  • 

in  other  respects  is  on  equality  with  the  general  deputies, 
{Srr  nmrv  «»r,iiiKr.) 

eherifT  and  his  (■iinty  liable  for  act.s  of  under-Blicrilf  wliilo  ho  dis- 
charges duty  <>f  sheriff,  .  •  "i 

when  so  discharping  duties,  may  ai)point  dei)Uties, 

but  the  deputies  of  oM  sheriU'not  authorized  to  act,     . 

nurh  appointment  must  Iw  in  same  manner  as  by  sheriffs, 

but  If  old  deputies  coDtinuu  to  act  may  bo  doomed  dcpuUoa  dt/aUo, 


234,  235,  564 
6G4 

13 
18 

13,  10,  108 

10,  159 

10 

17,22 

17 
17 


18.22 
22 
22 
22 
22 


INDEX. 


057 


UNDER-SHERIFF,  {continued,) 

if  (hitioH  of  sherilf  dischargod  by,  to  deliver  over  on  now  election,  0 

may  a|»i)!y  to  governor  for  leavo  to  organize  guunl,        .  'JK 

wlun  to  exc'cuto  deed  to  purcbascr  of  lands,      ....  O'll 
for  duties  generally, 

(Str   THE    DIFFERENT   TITLES.) 

W 

WARRANT  FOR  THE  DELIVERY  OF  OFFICIAL  BOOKS  AND  PAPERS, 

who  to  i.ssuc  warrant  and  proceedings  thereon,  .                                    .  8,  CG2 

party  when  committed,     .......  8,  002 

when  search  warrant  issued,        ......  8,  002 

how  executed,  &c.,  ......       8,  79,  &c.,  002 

WARRANTS  ON  DEMAND  AGAINST  SHIPS, 

{Sec  snip.s,  warrants  os  demand  again.st.) 

WARRANT  TO  DELIVER  CANAL  PREMISES,  BOOKS  AND  PAPERS 

manner  of  executing  warrant  of,  .            .            .            .            .  (5(J3 

WITNESS, 

when  exempt  from  arrest  on  civil  process,          ....  300 

hut  before  released,  to  make  affidavit,  &c.,         ....  300 
how  subpccnas  served  on,  and  attendance  enforced, 

{See   WITNESS,    COMPEI.I.ISfi    ATTENDANCE    Of,) 

WITNESS,  COMPELLING  ATTENDANCE  OF, 

who  may  serve  subpoenas,            .            .            .            ,            .            .  lyy 

shcrifls  to  serve  subpccnas  of  district  attorneys  of  other  counties,       .  25. 178 

when  and  where  subptenas  may  be  sor\-ed,         ....  179 

may  enter  a  dwelling  peacefully  but  may  not  break  doors  to  enter  179 

how  subpa'na  served  in  civil  cases,                      ....  180 

criminal  cases,        ......  181 

how  served  where  person  is  concealed,  &c.,       ....  289 

proof  of  service  of  a  subpoena,    ......  182, 289 

when  witness  makes  default  may  be  attached,    ....  183 

how  and  when  attachment  executed,        .....  184, 185 

officers  before  whom  witnesses  are  subpoenaed  may  issue  warrants,  10,  186 

to  be  directed  to  the  sherifT  of  the  county  where  the  witness  may  be,  186. 

witnesses  refusing  to  answer  may  bo  committed,  187  188 

who  may  execute  the  attachment,            .....  189 

sheriff  may,  though  a  party  to  the  original  suit,  &c.,     .  189 

how  a  subprt-na  issued  by  a  justice  in  a  civil  cause  served,  190 

when  the  witness  attached,          ....  \r^\ 

power  of  a  commissioner  to  take  testimony,  &c.,          .  192 

when  a  justice  may  fine  or  commit  witness,         ....  193  294 

power  of  justice  where  a  witness  is  examined  in  a  cause  pending  in 

another  state.  ........  I95 

how  subpoena  served  in  criminal  cases  before  officers,  &c.,  196 

magistrate  to  endorse  on  subpa'na  for  whom  issued,     .  I97 

penalty  for  inserting  names  of  defendant's  witnesses,  &c.,        .            .  197 

how  served  in  cases  of  contested  election,           ....  198 

how  subpoenas  served,  returnable  before  canal  commissioners.  &c..  190  200 

when  a  prisoner  may  bo  brought  up  by  habeas  corpus  to  testify,        .  201,  202 

fees  of  officer  holding  prisoner  to  be  paid  and  bond  given,                  .  203 

duty  of  officer  holding  prisoner,  .            .            .            .                        .  204, 205 

when  prisoner  to  be  remanded,    ......  2O6 

court  may  order  up  person  on  criminal  charge  without  habeas  corpos,  207 


84 


658 


INDEX. 


WrrXESS    COMPELLINO  ATTENPANCE  of,  (rontinuol.) 

{Si,-    ATTAlllMKST    rOR    CONTKMIT.) 
(See    IIADKA9    CORPUa    ad   TESTiriCANnCM.) 

WRECKS, 

diitiis  of  .««lifriff'!«,  coroners,  niul  wrerk  luaslors, 

to  ftid  vessels,  &c.,        .... 

when  to  t.iku  possession  of  property, 

to  cause  it  to  bo  appraised, 

and  keep  sanio  safely,    .... 

and  jcrive  public  notice  thereof, 

if  perish.ible,  to  a])ply  to  county  judge  for  leave  to  so 

tiiue  and  manner  of  .sale, 

when  property  may  be  claimed, 

rejection  of  claim,  not  to  prevent  suit  aj|;.iinst  officer, 

but  in  such  cvse,  claimant  cannot  recover  costs, 

otficer  entitled  to  reasonable  salvage,    . 

when  claim  allowed,  officer  holding  projjcrty  to  present  claim  for 

salv.-ige,       ..... 
when  salvage  claimed,  not  to  exceed  one-half  value, 
liow  salvage  adjusted,    .... 
fees  of  appr.iisers,  how  i)aid, 
when  property  to  be  sold, 
time  and  manner  of  giving  notice  of  sale, 
penalty  for  detaining  property, 
misdemeanor  to  neglect  to  deliver  up  property, 

efface  marks,  &c., 
.ill  oflkcrs  to  make  report  of  offences  under  statute, 
WRIT  DE  LUXATICO,  &c., 

{Sec    IN8ANP.,    AND    JURORS.) 

WFUT  OF  AD  QUOD  DAMNUM. 

what  is,    . 

on  delivery  of  writ,  sherill  to  give  notice, 

to  summon  and  swear  jurors,     . 

jury  to  view  land  and  make  inquisition, 

wh<-n  and  where  to  return  writ, 
WRIT  OF  INQUIRY, 

what,  and  how  executed, 

may  be  execuU'd  by  the  under  sheriff  or  a  deputy, 

when  to  be  executed,      .... 

jurors,  and  how  summoned, 

officer  to  hear  objections,  and  may  set  aside  and  summon  oth 

the  sheriff  jtresides  and  swears  witnes.ses,  jurors,  SiC, 

|i(iwers  of  officer,  ..... 

tet^limony,  ...... 

jurj'  to  retire  and  consult,  .... 

no  one  to  mihKle  in  their  deliberations, 

fomi  of  imiuisition  and  how  fligned, 

jurors'  fees,  ...... 

WRIT  "F  INQUIRY  II'ON  OOODS  OF  ONE  OUTLAWED, 

when  is«ued  by  atl<>nn  y  general, 

dtity  of  MH-riff  therei.n,  .... 

WRIT  OF  NE  EXEAT, 

(.S'<     NE    EXCAT.) 


7li3 
723 
739 
721 
725,738 
72G 
727 
727 
730 

728 
731 

732-731 
736 

736, 787 
733 
710 
711 
7J2 
743 


C38 
039 
C39 
030 
039 

632 
:0,  032 
033 
034 
034 
27,o:«> 
035 
030 
037 
037 
037 
037 

010 
010 


INDEX.  fJ5*J 

■  tC-TlUII. 

WRIT  OK  POSSESSION, 

il-s  Conn  and  iiaturo,        .......  6.j4 

how  execiil<'<l,     .......  555 

pKWcrs  and  fhilics  of  shcrill' uikKt  writ,             ....  560 

ilollicer  (listurlii'J,  i-ourt,  will  grant  atlaclirncnt,                                     .  557 

if  writ  not  rcturnahU',  ollicer  may  rcinovu  party  as  often  as  he  rotunw,  558 

but  not  if  the  jK-rson  claims  under  other  title,                          ,  558 

if  any  doubt  how  party  enters,  should  be  order  of  court,        .  558 

if  the  writ  is  returned,  oflicers  duties  are  at  an  end,    .  558 


INDEX   TO   FORMS. 


ACCOUNT, 

of  poods  purch.isod  for  employment  of  prisoners, 

of  transporting  prisoners  to  state  prison, 

house  of  refuge, 

against  United  States  for  supporting  prisoners, 

aflidavit  to,  of  county  charges,  . 
ACKNOWLEDGMENT, 

of  the  new  sherifl"  of  receipt  of  jails,  &c., 

of  parties  to  deputies'  bond, 

of  sureties  to  undertaking, 

of  deed,  .... 

AFFIDAVIT, 

of  justification  of  sheriff's  sureties, 

sureties  on  arrest,  &c., 

of  witness  to  bo  released  from  arrest,    . 

to  copy  bond  taken  on  ne  exeat, 

of  verification  of  assignment  of  a  judgment  on  redemption, 

of  an  assignment  of  a  mortgage, 

of  amount  due,  .... 

of  imprisoned  debtor  to  be  discharged, 

of  officer  making  distress, 

of  delivery  of  execution  to  sheriff, 

of  service  of  notice  to  return  process,     . 

that  execution  has  not  been  returned,  . 

of  sheriff  when  liable  as  bail,  to  be  exonerated, 

to  account  rendered  board  of  supervisors, 

of  coroner,  of  property  found  on  deceased,  and  disposition  thereof, 

{Sec    RETURNS.) 

APPOINTMENT, 

of  under  sheriff,  &c.,      ..... 

of  person  by  county  judge  to  discharge  office, 

of  constable  to  fill  a  vacancy,  &c., 
APPROVAL, 

of  clerk  of  sherilT's  bond,  .... 

of  sheriff  of  undertAkiug  for  delivery  of  personal  property, 

of  a  constable's  bond,     ..... 

of  bond  on  attachment  by  constable,    . 
ASSIGNMENT, 

by  the  old  to  the  new  sheriff,    .... 

of  bond  for  liberties,       ..... 

of  districts  in  which  coroners  to  act  in  New  York, 


72 
74 
75 
76 
293 

9 

13 

96 

183 

6 

95 

108 

154 

188 

189 

190, 191 

222-224 

259 

268 

209, 270 

271,272 

281 

293 

340 


11 

281 
341-343 

6 
125 
349 
360 

8 
226 
296 


(3G2 


INDEX    TO     FORMS. 


ATTACHMENT, 

Ag.iiiist  a  wltncHs  ami  return,     .....        44, 

cudursonuMit  of  time  of  n-ccipt  of,  in  cose  of  foreign  cor]xir.ilioii,  &c., 
.cortilicatc  to  copy  served,  .... 

notice  to  creditor,  &e.,  »)f  what  alUicheil, 

inventory  ami  apprai.sal,  Ac,    .... 

bond  of  indemnity  on  claim  to  attached  I'roperly, 

undertaking  aijainst  ccst-s,  &c., 

return  to  the  attacliment,  .... 

order  for  attachment  .igainsl  the  slierill", 

attacliment  for  not  returning  process,  . 

bond  on  attachment,       ..... 

rvtum  to,  ...... 

against  a  witness  by  a  coroner, 

(.bVc    CONSTABLES.) 


BAIL, 


BOND, 


U 


deputation  to  arrest  jirincipal,    . 
certificate  of  surrender, 

sheriff's  boml,  oath  of  surety  and  approval, 
deputy's  bond  and  acknowledgment,     . 
given  on  liabeas  corpus  and  justification, 
of  indemnity  on  claim  of  atUiched  property, 

against  a  levy, 
on  arrest  on  nc  exeat,     . 
for  the  liberties,  and  assignment, 
on  arrest  on  atUichmcnt, 

(iSfC    CONSTABLES.) 
{Sec  bNDERTAKI.VO.) 


46,  4C,  47 
184 
186 
130 

137-140 
111 
1  IJ 
U3 
273 
274 
275 
276 

298,  299 


112 

113 

2,  3,  4, 

5,0 

12,  13 

61 

,62 

141 

108 

163 

.  225 

22G 

275 

CALENDAR, 

of  prisoners  in  jail  for  court,       ..... 
CAPIAS  AD  SATISFACIENDUM, 
return  of  arrest  on,  •      . 

and  letting  to  bail,       .... 

that  defendant  rele.wed  by  habeaiJ  coq)US, 

where  one  taken  and  other  not  found,    ... 

that  defendant  is  discharged  ft-om  custody  under  insolvent  laws 

of  escajK'  in  consequence  of  fire  in  jail, 
CERTIFICATE, 

of  county  clerk  that  shcritr  h;us  (jualifietl, 

of  niJigistrat*,' letting' pri.soner  to  biiil,    .... 

of  attendance  of  couNtable  at  court,      .... 

of  execution  of  a  criminal,        ..... 

to  copy  undrrt.ikiiig  on  arrest  delivered  alturney, 

of  dejMihit  iiiHt4-ad  of  bail,  ..... 

of  clerk  that  amount  is  <le]>oHited  with  him, 

of  surrender  of  defendant  by  bail,         .... 

that  dcfcodant  is  in  prison,        ..... 

to  copy  allachmeiit  s<rved,        ..... 

of  joalicea  and  clerk  removing  coDSlablc, 


54 

214 
215 
21G 
217 
218 
219 

7 
24 
33 

•.a 
it»i 

102 
113 
279 
136 
344,  346 


INDEX  TO    FORMS. 


G63 


CERTIORARI, 

rc'tum  of  service  of,  and  return  to,  .  .  . 

CITATION, 

proof  of  sorviee  of,  .  .  •  •  • 

CONSTARLKS, 

oath  of  ollicc,  ....•• 

summons  to  atteml  court  ami  certidcato  of  attcnrlanco, 

forms  for,     ...  .... 

appointment  of  constable,  &c.,     .... 

removal  of,  .  .  .... 

acceptance  of  resignation  of,         . 

bonil  of,  amliipproviil,        .  .  .  •  • 

sumnifin.s,  return  of  how  served,  .... 

attachment,  return  of  service,        .... 

inventory  of  goods  attached,        .... 

ccrtilicatc  of  constable  thereto,  &c., 

bond  to  prevent  removal  of  goods,  oath  and  approval, 

bond  of  claimant,  ....•• 

warrant,  return  to,  .... 

service,  return  of,  . 

execution,  endorsement  of  lev}'  on,  . 

notice  of  sale  of  property,  ... 

returns  to  executions,       .  .... 

certificate  to  copy  of  execution  left  with  jailer, 

highway  laws,  return  of  service  of  summons  under, 

highway  laws,  return  of  service  of  summons  on  a  corporation 
summons  in  case  of  opening,     . 

encroachment,  return  of  precept  for  jury, 

swamps,  return  to  summons  in  case  of  draining, 

for  forms  in  other  ca'^es. 

(See   THE    ArPnOPRlATE    TITLE.S.) 

CONVICTS, 

account  for  transporting  to  prison, 

bouse  of  refuge, 
when  one  becomes  insane, 
or  a  female  is  pregnant,     . 
invitation  to  attend  execution  of, 
certificate  of  execution  of, 
report  to  secretary  of  state  of, 
CORONER, 

oath  of  office,  .... 
forms  for,  ..... 
assignment  of  districts  in  New  York  to,  . 
eubpffna  for  witness, 
attachment  against  witness  and  return,  . 
oath  to  foreman  and  jurors, 

witnesses,  .... 
interpreter, 
inquisition,  .... 

in  case  of  murder, 
in  case  of  murder  where  acces-saries,  &c.,     . 
whera  bastard  ii  destroyed,     . 
'       where  persons  found  dead  with  marks  of  violence, 
where  an  infant  so  found, 
of  killing  by  an  officer  when  resisted, 


231,  2% 
2G-1-2'M5 

1 

32  3.3 

311-381 

, 312,  343 

311, 315 

316,  347 

348,  31'J 

300, 353 

350 

854 

855 

357-359 

300 

301, 362 

303 

3C1-36G 

373 

307-374 

372 

875 

370 

377 

378,379 

880, 381 


74 
75 

77  86 

70-87 
88 
89 

90-92 


290-340 
2% 
297 
298, 299 
300,  301 
302 
303 
304 
305 
306 
307 
308 
309 
319 


(361 


INDEX    TO  FOn.MS. 


CORONER,  (continued.) 

iniiuUltion  wlu-ro  a  folony  \s  committod, 

whi'tx'  deceased  iittein|iled  to  commit  a  rubbery, 
of  killing  in  aelfdefenco, 
of  killing  in  defence  of  house  and  family, 
of  killing  by  militiiry  in  s^iipjire.s.sing  a  riot, 
where  one  ha.i  (lic>d  i\  natural  death, 
where  one  i.s  nciidontally  tlrowned,  . 
where  one  takes  imison  accidentally, 
when'  one  is  acci<leutally  choaked,  &.C., 
of  death  from  old  age,  &c.,  . 
intemperance,  . 
disease  caused  by  intemperance, 
delirium  tremens, 
falling  from  cars, 
J  a  child  falling  into  fire, 

suicide  by  lunatic, 
wlicre  one  kills  himself  in  a  tit  of  insanity, 
in  case  of  suicide, 
where  one  aided  in  self-murder, 
form  of  examination  of  witnesses  before, 
warrant  to  arrest  j)arty  charged  with  the  crime, 
oath  to  witness  on  examination,    . 
form  of  examination  of  prisoner,  &c  , 
warrant  to  commit  prisoner, 

accomplice,     . 
recognizance  by  witness,  .... 
with  sureties,      .... 
warrant  to  commit  witness  who  ref\ises,  &c., 
statement  of  coroner  to  supervisors  of  property  found,  &«., 
for  forms  for  service  of  process,  «fcc., 

(S(l    THK    I)IKKEHF..NT   TITLKS.) 

representation  of,  that  sherill"  is  in  custody,  &c., 

designation  of  coroner  to  execute  office,  &c.,     . 
COUNTY  CLERK, 

approval  of  sherilf's  l)ond,  .... 

ccrtilicatc  that  sherilf  lias  qualified, 

that  deposit  instead  of  bail  paid  into  court, 
CRIER, 

proclamations,  by,  . 

D 
DEPOSIT, 

ccrtiflcatc  of  by  sheriff,       ..... 
that  it  has  been  paid  into  court, 
DEI'UTATION, 

of  special  dejtuty,  ...... 

f)f  ball  to  arreHt  principal,  .... 

DEPUTV, 

his  appointment,     ..... 

bond  and  acknowledgment,  .... 

Bpecial,         ....... 

E 

ENDORSEMENT, 

of  warrant  by  Justice  of  another  county, 

return  thereto,         ...... 


KmaaB. 
812 

;n3 

314 
315 
810 
317 
318 
31'J 
320 
321 
322 
323 
824 
326 
326 
827 
328 
829 
330 
381 
382 
383 
334 
835 
836 
337 
838,  339 
310 


286 
280 

6 

7 

102 

66-69 


101 

102 

16 
112 

11 

:.  13 

16 


22 
23 


INDEX    TO    FORMS. 


CG5 


ENDORSEMENT,  (continued.) 

of  rccc'i|)t  of  attachment,  . 
of  rccfijit  of  execution,     . 
of  levy  under  execution,  . 
of  levy  by  constable, 
EXECUTKiN, 

endorsement  of  receipt  of, 

admission  of  receipt  of,     . 

receipt  of  money  paid  on,  by  debtor  to  defendant, 

endorsement  of  levy, 

receipt  for  property  levied  on,     . 

bond  of  indemnity  against  levy,  . 

notice  of  sale, 

bills  of  sale, 

appraisal  of  homestead,     . 

certificate  of  sale  of  laml, 

deed  of  leasehold  lands,  . 

certificate,  &,c.,  on  redemption,     . 

deed,  .... 

return  to  execution, 

of  resistance, 

of  nulla  bona, 

of  part  made  and  nulla  bona,  for  residue, 

where  whole  is  made, 

when  goods  remain  unsold  for  want  of  bidders, 

of  nulla  bona  where  one  of  two  joint  debtors  served, 

of  nulla  bona  against  an  executor,  &c.,  . 

when  stayed  by  appeal,    . 

when  stayed  by  appeal  after  levy, 

when  judgment  vacated,  . 

of  levy  and  sale  where  controversy  as  to  title, 

when  goods  are  replevied, 

of  loss  of  goods  by  Are,    . 

where  moneys  have  been  applied  to  other  liena, 

{Sec   CONSTABLES.) 
{See  CAPIAS   AD   SATISFACIENDUM.) 


IIDHBCR. 

134 

107 
KiO,  102 
.30.1,  -.m 

Vol 

108 

159 

100-162 

103 

108-172 

17.3, 174 

170, 177 

178-180 

181 

182,183 

184-192 

193 

194-207 

28,205 

194 

195 

196 

197 

198 

199 

200 

201 

202 

203 

2M 

206 

207 


POKEIGN  JURY, 

return  to  venire  for, 


41 


HABEAS  CORPUS, 

return  of  service  of,  ...  , 

where  the  party  cannot  be  found, 
conceals  himself, 
when  he  is  a  sheriff,  &.c., 
to  habeas  corpus,  .... 
when  the  party  is  sick, 
when  the  party  is  not  in  the  sheriff's  custody, 
bond  given  on  service  of,  ... 

ad  testificandum,  return  of  service  of,  and  bond. 


227 

228 
229 
230 
231 
232 
233 
61 
49.  50, 51 


INQUISITION, 

as  to  sanity  of  prisoner, 

85 


86 


GGG 


INDEX    TO    FOHMS. 


INQUISITION,  (rontinuf,!.) 

In  case  of  pri'irnant  female, 

on  claim  of  pro|M'rtr, 

on  writ  of  imiuiry, 

on  writ  of  ad  quod  damnum, 

by  coroners, 

(Srr    CORONERS.) 

INTBRROGATORIES, 

to  the  slierift"  <>n  attachment, 

answer  of  .sluTiff  to,  .  .  . 

INVENTORY, 

of  poods,  Ac,  attached,     . 
oath  to  ap]<raisers  annexed, 
certificate  endorsed  on  inventory, 
of  ship,  &c..  under  warrant,  ; 

of  goods  attached  by  constable, 

CTV'ITATION, 

to  attend  execution  of  criminal,    . 


87 
ir.7 

'211 
304-829 


277 

278 

137 
13H-i:5'J 
140 
147 
364 


88 


JAIL, 

form  of  record  of  commitments,  &c., 
JURORS, 

directions  to  deputy  to  summon,  &c.,      ... 

notice  to  jurors  who  cannot  be  found, 

return  to  jury   list,  ..... 

return  to  order  for  summoning  new  grand  jurors  and  talesman 

return  to  venire  for  foreign  jury,  .... 

oath  to,  in  case  of  insane  convict, 

oath  to,  on  imiuest  on  claim  of  property, 

oath  to  jurors  on  appraisal  of  homestead, 

oath  to,  on  writ  of  inquiry,  .... 

of  ad  quod  damnum, 
return  to  precept  for,  in  case  of  lunacy  and  panel, 
in  plank  road  cases, 
in  case  of  forcible  entry, 
in  case  of  summary  proceedings  to  obtain 
sion  of  land, 
return  of  service  of  order  ujjon  a  defaulting  juror, 
{Sec  cono.NKns.) 

{See   CONSTADLCS.) 


posscs- 


MILITARY. 

order  calling  out,  Slc., 


M 


N 


NE  EXEAT, 

bi>nd  on  arn-st,       ...... 

afTldavit  of  ulifrifT  to  bond,  .... 

return  to  no  exeat,  ..... 

KOTICE, 

of  hhcriff  of  place  of  holding   ofTlco, 

to  district  attorney  of  calling  jury  in  case  of  insanity,  &.c. 
in  case  of  i)rvgnant  female, 

of  justiflcallon  of  ball,      ..... 


70 

37 
38 
3'J 
40 
41 
81,82 

ir.5 

ITS 

240 

244,246 

246 

247 

260 
261 


29-31 


163 

164 

166, 166 

10 

78 
79 
98 


INDEX    TO    FORMS. 


667 


NOTICE,   (continued.) 

of  claim  ti)  property, 

to  creditors  of  wlial  i)roperty  attached, 

to  pay  .surplus  valiK!  of  homestead, 

of  wrecked  property, 

of  election,  .... 

to  sheriff  to  return  process, 

of  designation  of  coroner  to  execute  office, 

of  seizure  of  liciuors, 

(See    NOTICE    OF    SALE.) 

NOTICE  OF  SALE, 

of  vessel,  &c,  .... 

of  per-^onal  property  under  execution,     . 
of  real  estate,  .... 

of  postponement  of  sale,  . 
under  decree,  .... 

of  distress,  ..... 

0 

OATHS, 

of  office  of  sheriffs,  &c.,    . 

of  sureties  to  sheriff's  bond, 

to  jurors  to  try  sanity  of  prisoner, 

when  juror  objected  to,     . 

to  witness  in  such  case, 

on  the  inquest,  . 

in  case  of  pregnant  female, 

to  appraisers  of  property  attached, 

to  jurors  on  claim  of  property,  . 

to  witnesses  on  claim  of  property, 

to  jurors  to  appraise  homestead,  . 
on  writ  of  inquiry, 

to  witness  on,  . 

oath  to  jurors  on  writ  of  ad  quod  damnum, 

to  foreman  of  coroner's  jury, 

to  jurors,      ..... 

to  witnesses,  .... 

to  interpreter,        .... 

to  witnesses  on  examination  of  prisoner, 

to  sureties  to  bond  to  constable  on  attachment, 
OFFICE, 

notice  of  place  of  holding  sheriff's, 
ORDER, 

of  sheriff  for  military  to  aid,  &c, 

for  attachment  against  sheriff, 
OYER  AND  TERMINER, 

proclamation  for,    .... 

return  to  precept  for, 

calendar  of  prisoners  for, 


hi;mbki. 

129 

V'A 

180 

•ZDl 

. 

2t}3 

ii07 

•2b9 

. 

289 

1-J8 

173 

174 

175 

2U3 

• 

258 

1 

5 

81 

82 

&3 

84 

85 

138, 139 

1G5 

106 

178 

236 

237 

240 

300 

301 

302 

303 

332 

353 

10 

29-31 
273 

34 

35,36 

54 


PRECEPT, 

return  to,  of  district  attorney, 

(Sec  JURORS.) 

(StX    CONSTABLES.) 


34 


668 


INDEX    TO   FORXS. 


PROCLAMATION, 

of  sherllT  for  oyer  »ud  UTtiiinor, 

{Sec   CIUKH.) 

PRISONER, 

{See  CONVICT.) 
ftfflilavit  of  imprboned  debtor,  to  be  discbargcil, 

B 

RECEIPT, 

for  process,         ...... 

for  nioiu-y  i>.iid  by  a  debtor  to  shcrifT,  . 

for  properly  levied  on,  &c.,       .... 
RECORD, 

of  commitments,  &c.,  to  jail,    .  .  • 

REDEMPTION, 

cerlitlcatesou,    ....•■ 

atlidavits,  .  •  . 

REGISTER, 

sberiflk',  form  of  entries  in,        .... 
REPORT, 

to  sessions  of  disposition  of  proceeds  of  labor  of  prisoners, 

to  secretar}-  of  state  of  convictions, 

of  sale  of  vessel,  &c.,      .  .  .  •  • 

of  sale  under  decree  of  foreclosure, 
in  partition, 
RESCUE  AND  RESIST.INCE, 

return  of,  ....■• 

RETURN, 

to  civil  process,  that  defendant  cannot  be  found, 

of  arrest,  under  order,    . 

when  deposit  is  made, 

and  cunimitment  for  want  of  bail, 

and  rescue,     . 

and  defendant  sick,    . 

and  dead, 

of  exemption  from  arrest, 

of  privilege,         .  .  .  • 

to  allidavita,        .  •  .  • 

Uj  order,  &«.,  for  delivery  of  personal  property, 

of  service  of  judge's  order,  under  proceedings  supplementary,  &c. 

to  warrant  of  county  treasurer, 

to  noiilkation  of  comptroller, 

to  allaelimenl  f<)r  contempt, 

for  returns  in  other  cases, 

(Sc«    DlfTKKE.S'T    TITLK.S.) 
S 

SALE  OF  LAND  UNDER  DECREES, 

notice  of, 

deed  on  sale  on  foreclosure, 

rcjwrt  of  sale  on 

rvporl  of  Kftle  in  partiliun, 

diH.-fl  on  sale  in  partition, 
SEARCH  WARR/VNT, 

returns  to. 


34 


222-224 


10,  17 

•  159 

103 

70 

.     184-187 
.     188-191 

.    294,296 

73 

90-92 

149 

210 

.     211,213 

27,  28,  206 

93 

99 

100 

103 

104 

106 

100 

107 

109,110 

111 

9-133,  288 

243 

253 

254,  -^G 

270 


208 

209 

210 

211.213 


12 


26,20 


INDEX    TO    FOHMS. 


GOO 


SHERIFFS, 

fbrniM  for, 

oatli  of  office  of,  .... 

bond,       ...... 

assignment  by  olil  to  new  sheriff, 
ackiiowlidgmciil  of  ri-aii)t  "if  jails  by  new  sheriff, 
notice  of  place  of  holding  oflice, 
proclamation  for  oyer  and  terminer  by, 
resignation  of,    . 
interrogatories  to,  on  attaclmicnt, 
answer  to  interrogatories, 
form  of  register  of,         . 
SHIPS  AND  VESSELS, 

^       return  of  service  of  warrant  against,     . 

inventor}-  annexed,        .... 

notice  of  sale,      ..... 

report  of  sale,     ..... 

return  to  warrant,  .... 

SPIRITUOUS  LIQUORS, 

permit  of  jail  physician  to  allow  for  prisoner, 
notice  of  seizure  of,        . 
return  to  warrant  of  seizure  of, 

destruction  of, 
proof  of  service  of  a  summons  on  a  witness,    . 
SUBPCENA, 

proof  of  service  of,  in  a  civil  case, 

criminal  case,  . 
by  reading,  . 

where  party  conceals  himself, 
SUMMONS, 

for  constables  to  attend  court,  . 
certificate  of  service  of,  on  corporation, 

on  a  foreign  corporation, 
when  no  person  designated  on  whom 
on  an  infant  under  fourteen  years, 
upon  a  lunatic,  Slc.,   . 
upon  a  single  defendant, 
upon  several, 
certificate  that  defendant  evades  service, 
affidavit  of  service  in  such  case, 
certificate  of  ser\-icc  on  a  witness  under  liquor  law,    . 

(iS'CC    CONSTABLES.) 

u 

UNDERTAKING, 

on  arrest  under  Code,     . 

aflSdavit  of  justification  of  surety  to,  . 

certificate  of  acknowledgment  of, 

to  copy  delivered  attorney,  . 
on  arrest,  where  property  is  secreted,  . 
of  plaintiff' to  obtain  delivery  of  property, 
approval  thereof, 

of  indemnity  against  claim  of  property, 
by  one  who  requires  return  of  property, 


205 

1 

2-4 

8 

9 

101 

34 

284 

277 

278 

05 


150, 


to  serve 


201, 


110 
147 
148 

110 
l.jl,  152 

71 

289 
200 
291 
202 

42,282 

43,282 

48 

5-3 

32 
115 
116 
117 
118 
119 
120 
121 
122 
123 
292 


94 

95 

69 

07 

114 

124 

12.5 

127 

128 

CTO 


INDEX    TO    FORMS. 


UNDERTAKIXa,  (r/>ii/i»«<-rf.) 

of  i>l(iitititr,  to  prusocuto  acliuim,  &c.,    . 
of  ituli'iuiiity  agniiist  Irvy, 

{See  Boyus. 


142 

172 


ViLNIRE, 

rctJini  to,  for  summoning  fon*igti  jury, 
|iy  roiistaMo, 

\\ 
WARRANT  IX  A  CRIMINAL  CASE, 
rvlurn  of  arrest, 

when  all  defendants  not  found,  . 
that  the  magistrate  is  absent, 
endorsement  of  warrant, 
return  that  defendant  h.-is  been  let  to  bail, 
certificate  of  letting  to  bail, 
return  of  rescue,  &c., 

to  search  warrant, 
WRECKS, 

appraisal,  &c.,  .... 
WRIT  OF  AD  QUOD  DAMNUM, 
notice  of  execution  of,    . 
oath  to  jurors,     .... 
inquisition,  .  . 

return  to  writ, 
WRIT  OF  INQUIRV, 

oath  to  jurors  on, 
witnesses, 
inquisition, 
WRIT  OF  POSSESSION, 

return  to,  ...  . 


41 
303 


18 
19 

20/21 
22 
23 
24 
27 

26,20 

200-202 

289 
240 
241 
242 

236 

2:57 
238 

220,221 


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